University of Montana
ScholarWorks at University of Montana
Theses, Dissertations, Professional Papers
Graduate School
1998
Wilderness airstrips: A case study for using
legislative history to inform wilderness
management
Shannon S. Meyer
The University of Montana
Follow this and additional works at: http://scholarworks.umt.edu/etd
Recommended Citation
Meyer, Shannon S., "Wilderness airstrips: A case study for using legislative history to inform wilderness management" (1998). Theses,
Dissertations, Professional Papers. 8580.
http://scholarworks.umt.edu/etd/8580
This Thesis is brought to you for free and open access by the Graduate School at ScholarWorks at University of Montana. It has been accepted for
inclusion in Theses, Dissertations, Professional Papers by an authorized administrator of ScholarWorks at University of Montana. For more
information, please contact [email protected].
I'
I
Maureen and Mike
MANSFIELD LIBRARY
The University of
IVIONTANA
Permission is granted by the author to reproduce this material in its entirety,
provided that this material is used for scholarly purposes and is properly cited in
published works and reports.
** Please check "Yes" or "No" and provide signature **
Yes, I grant permission
No, I do not grant permission
____
Author’s Signature
Date
S |l2L
_________________
Any copying for commercial purposes or financial gain may be undertaken only with
the author's explicit consent.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
WILDERNESS AIRSTRIPS:
A CASE STUDY FOR USING LEGISLATIVE HISTORY
TO INFORM WILDERNESS MANAGEMENT
by
Shannon S. M eyer
B.A. Bowdoin College, 1992
presented in partial hilfiUinent of the requirem ents
for the degree of
Master of Science
The University of M ontana
1998
Approved by:
C hairm an
V
Dean, G raduate School
g-u-qr
Date
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
UMI Number: EP39381
All rights reserved
INFORMATION TO ALL USERS
The quality of this reproduction is dependent upon the quality of the copy submitted.
In the unlikely event that the author did not send a complete manuscript
and there are missing pages, these will be noted. Also, if material had to be removed,
a note will indicate the deletion.
UMI*
Dissertation Publishing
UMI EP39381
Published by ProQuest LLC (2013). Copyright in the Dissertation held by the Author.
Microform Edition © ProQuest LLC.
All rights reserved. This work is protected against
unauthorized copying under Title 17, United States Code
ProQuest LLC.
789 East Eisenhower Parkway
P.O. Box 1346
Ann Arbor, Ml 4 8 1 0 6 -1 3 4 6
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Meyer, Shannon S., M S., M ay 1998
Environm ental Studies
W ilderness Airstrips: A Case Study for Using Legislative History to Inform
W ilderness M anagement (96 pp.)
Chairperson: LenBroberg
The Wilderness Act of 1964 created a nationw ide system to protect some of
the rem aining "untramm eled" w ildlands from developm ent and
degradation and to preserve them for future generations. Like most statutes,
the W ilderness Act was the product of political compromise. This
com prom ise allowed som e anomalies to persist w ithin the system. These socallW 'nonconforming' uses are legally perm itted b u t conflict w ith the values
and ideals p u t forth by the Act. W ilderness m anagers have the difficult task
of translating these am biguous and sometimes conflicting m andates into onthe-ground m anagem ent decisions. This thesis will examine one such use,
aircraft landing strips, sixteen of w hich persist in wildernesses outside of
Alaska. These are aU found in the states of Idaho in Montana.
The judicial system has long em ployed a process for interpreting ambiguous,
over general, and contradictory statutes. W hen the m eaning of a statute is
uncertain from its statutory language, courts often look to the legislative
history to determ ine w hat Congress intended. They examine a variety of
legislative docum ents, from committee reports to Congressional testimony,
to aid their interpretation. I present a step-by-step process for interpreting
statutes, first using statutory construction and then legislative interpretation.
This process can be employed by the managing agencies as well. It allows
m anagers to make difficult and discretionary decisions that are informed by a
better understanding of Congressional intent for wilderness protection.
This thesis explores the philosophical underpinnings of this process, its
drawbacks, and its benefits. It examines argum ents both for and against the
use of legislative history for interpretive purposes, and then outlines how
this process can be applied. It then looks at the legislative history of the
W ilderness Act and subsequent w ilderness legislation to determ ine how
Congress intended w ilderness airstrips, a seemingly nonconforming use, to be
managed. Finally, I apply this process to three current management issues.
M anagem ent outcomes are examined using the aforem entioned
methodology. These case studies provide examples of the practical
m anagem ent application potential of this process.
11
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CO NTENTS
_________________
C h ap ter
1 INTRODUCTION
2
..............................................................................
ANALYTICAL FRAMEWORK
.......................................................
1
9
3 THE WILDERNESS ACT
31
4
50
WILDERNESS AIRSTRIPS
5 WILDERNESS AIEOTRIPS T O D A Y .........................................................
61
6 CONCLUSION
88
SOURCES CONSULTED
.........................................................................
111
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
91
CHAPTER ONE
INTRODUCTION
As early as the 1920s, wilderness preservationists realized that although
wild areas still existed in the United States in a primitive and pristine state,
they were rapidly being destroyed and degraded. The country’s burgeoning
population w anted more resources, more places to play, and their ow n
private piece of paradise. As a result of these growing dem ands, the extractive
industries, developm ent, and increased recreation were taking their toll on
the last vestiges of wild space in America. Wilderness proponents feared that
the existing adm inistrative protection of these lands was insufficient to
w ithstand the pressures and that legislative intervention was crucial.
The road to legislative protection of wilderness, which officially began
in 1956, was long and arduous. It took nine years of debate and compromise,!
but finally in 1964 the N ational W ilderness Preservation System (NWPS) was
established w ith an initial 9.1 million acres of wilderness in the Forest
Service's domain. Today, the system exceeds 104 million acres in four
agencies, the Bureau of Land M anagement (ELM), the Forest Service (FS), the
National Park Service (NPS), and the Fish and Wildlife Service (FWS).^
These areas are the cornerstone of outdoor recreation for 18 million visitors a
year^ and provide a haven for biological diversity and ecological integrity.^
The W ilderness Act of 1964, (the Act) was a revolutionary statem ent
that validated the concept of wilderness on our public lands. By creating the
! Michael McCloskey, The Wilderness A ct of 1964: Its Background and Meaning, 45 OR L. REV.
298(1966).
^ A ldo Leopold Wilderness Research Institute, Missoula MT, Unpublished data (1998).
^ David N . Cole, Wilderness Recreation in the United States - Trends in Use, Users, and
Impacts, 2 INTERNATIONAL JOURNAL OF WILDERNESS, at 14 (1996).
^ David N. Cole and Peter B. Landres, Threats to Wilderness Ecosystems: impacts and research
needs”, 6 (1) ECOLOGICAL APPLICATIONS, (1996).
1
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
NWPS, Congress not only protected millions of roadless acres from
consum ptive usage, it also set forth standards for the designation of
additional tracts of prim itive federal land as wilderness. The Act w as as
m u ch a preservationist proclam ation as it w as a substantive m easure. It
substantiated tiie idea that w ü d spaces had value, both inherent an d to
society, by their existence in a prim itive state. W ith the Act, Congress w as
expressing the nation’s desire to preserve this natural legacy for future
generations.
The overriding goal of w ilderness designation is to m aintain th e
natu ral an d untram m eled quality of an area. As a result, units of the NWPS
w ere afforded a higher level of protection th an other public lands. The
W ilderness A ct defines w ilderness as a place ’’untram m eled by m an, w here
m an him self is a visitor w ho does n o t rem ain”.5 H ow ever, despite this lofty
definition an d the values set forth as the purpose of the Act, the statute
contains som e anom alies th at have detracted from the purity of the
w ilderness system.
A s w ith any statute, the W ilderness A ct w as the p ro d u ct of political
com prom ise.^ The authors of the w üdem ess bills knew that opposition to
their legislation w ould be severe, particularly from resource extraction
industries, an d th at com prom ise w ould be a necessity. They sought to reduce
opposition by m aintaining the status quo. Only areas w hich m et the
characteristics of w üdem ess set forth in the Act w ere eligible for classification.
The NWPS w ould then m aintain these areas in the condition they w ere
found, purportedly prohibiting any further degradation. In areas that h ad an
5 The W ilderness Act of 1964 § 3(2)(c) 16 U.S.C. § 1131.
^ See generally, Delbert V. Mercure and W illiam M. Ross, The Wilderness A c t A Product of
Congressional Compromise, in CONGRESS A N D THE ENVIRONMENT 47-64 (R.A. C ooley and
G. W andesforde-Sm ith, eds.) (1969).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
established history of particular uses that did not fit w ith the idealistic
language of the Act, these activities w ere allowed to continue. Because of
this strategy, many nonconform ing uses - from airstrips to livestock grazing w ere allowed to continue in the newly designated NWPS.
Problem Statement
W ilderness areas m ust be m anaged in accordance w ith the original
W üdem ess Act, subsequent relevant w üdem ess enabling legislation, and
agency regulations. W here ambiguity exists w ithin a statute, this uncertainty
is carried over into management. In m any cases. Congress gave the agencies
discretionary power to m anage incompatible uses. As a result, confusion has
arisen from the conflicts betw een the overriding goals of w üdem ess
protection and the limited exceptions perm itted by the Act. This thesis will
address the assertion that Congress only intended to perm it a narrow scope of
previously established nonconform ing uses to continue in designated
w üdem ess.
I believe that whÜe political expediency kept w üdem ess
proponents from eliininating some incom patible uses altogether, their intent
was to maintain use at existing levels, not to allow them to expand.
After looking at the implications of incompatible w üdem ess uses in
general, I will use w üdem ess airfields as a case study for this issue. I have
chosen to examine airstrips for several reasons; 1) the existence of wüdem ess
airstrips is not widely know n in both the conservationist and recreationalist
communities, and 2) the intrusion of a m otorized flying vehicle has a
uniquely visible effect on both the w üdem ess character of an area, and the
experience of non-m otoiized visitors.^
7 Frank Church-River of No Return Wilderness Draft Env. Impact Statement (FC-RONRW
DEIS) , Vol. I, at 1-32, 1-36, (1998); U.S.D.A. Forest Service S elw ay-B itterroot W ilderness
General Management Direction , at 0 -1 (1992).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
One definition of a nonconform ing w ilderness use is "one which,
legally or otherwise, is not in harm ony or agreem ent with w ilderness as
defined in the Wilderness Act".® These are uses that conflict w ith the values
and character forw arded by the Act but are perm itted to continue to varying
degrees. The W üdemess Act states that there shall be
no commercial enterprise and no perm anent road w ithin any
w üdem ess area designated by this Act and . . . there shall be no
tem porary road, no use of m otor vehicles, m otorized equipm ent or
motorboats, no landing of aircraft, no other form of mechanical
transport, and no structure or installations in any such area.^
However, in the interests of maintaining the status quo, these prohibitions
w ere circumvented through special provisions allowing nonconform ing uses
such as m otorboat use, aircraft landing, grazing, mining, adm inistrative
structures, perm anent outfitter caches, and w ater im poundm ents to persist
u n d er certain circumstances.^ °
M anagem ent of N onconform ing Uses
There are sixteen airstrips w ithin the NWPS in the coterminous states.
These landing strips, found on three w üdem esses in Idaho and M ontana, are
governed by both the W üdem ess Act and two subsequent w üdem ess laws.
While not widespread w ithin the system, airstrips can have a profound
im pact on the w üdem ess quality and character of the unit in which they
persist. Negative impacts have been found on native flora and fauna, and the
® Frank R, Beum, Nonconforming Wilderness Uses: Confounding Issues and Challenges in
PREPARING TO MANAGE WILDERNESS IN THE 21ST CENTURY, Proceedings of the
conference, USDA Forest Service GTR SE-66 at 108 (1990).
^ The Wilderness Acf, supra note 5, § 4(c).
10 Id. at 109.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
,5
noise and presence of aircraft can significantly im pact non-m otorized visitors'
sense of solitude and prim itive recreation.
Before the Act's passage, aircraft w ere allowed to land in Forest Service
roadless areas. Air access and other uses of these lands were m anaged under
the agency’s "U" Regulations. These regulations provided nom inal
protection from consumptive and m otorized uses b u t allowed established
uses to
c o n tin u e .^ 2
proponents of w ilderness legislation w anted even
stronger protection for w üdem ess w ith a system w hich w ould be perm anent
and not subject to the vagaries of adm inistration changes. The W üdemess
Act created such a system. W hüe m ore protective of w üdem ess values, the
Act, like the previous regulations, allow ed established uses to continue.
They were, however, subject to such restrictions as the Secretary of
Agriculture chose to apply.
After the Act was passed, various user groups saw the negative
potential that w üdem ess designation could have on their preferred uses. In
proposed w üdem ess areas w ith weU established histories of air access, aircraft
users feared that the m anagerial discretion provided for in the W üdemess
Act w ould overly restrict or altogether elim inate their favored mode of
travel. For the two post-1964 w üdem esses that currently aUow air access, the
further protection of this use w as an issue during designation debates. There
is specific language in the Central Idaho W üdem ess Act of 1980 that prohibits
the closure of airstrips o n the Frank Church-River of N o R etum w ithout due
p ro c e s s .^ 3
L ess
explicitly, the committee report for the bül creating Montana's
^^ Teryl G. Grubb & William W. Bowerman, Variations in Breeding Bald Eagle Responses to
Jets, Light Planes, and Helicopters,
(3) J. RAPTOR RES. 213-222(1997); Frank Church-River
o f No Retum Wilderness Draft Env. Impact Statement (FC-RONRW DEIS) , Vol. I, at 1-37
(1998)
12 JOHN C. HENDEE ET AL., WILDERNESS MANAGEMENT, at 101 (1990).
1^ This provision provides that; the landing of aircraft, w here this use has become
established prior to the date of enactment of this Act shall be permitted to continue subject to
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Great Bear Wilderness contains language further protecting access to the
single airstrip there.
The ambiguity surrounding this use, and the discretion given to
m anagers, has led to conflicts and confusion on the ground. While the
language of the W ilderness Act indicates that m otorized use is incompatible
w ith wilderness values, section 4(d)(1) creates an exception stating that
"where these practices have already become established [they] may be
perm itted to continue subject to such restrictions as the Secretary of
A griculture deems desirable."! ^ The discretion contained w ithin this clause
puts the onus on m anagers to determ ine the acceptability of access or levels of
access to a particular area. The specific language of the Central Idaho
W ilderness Act creates an additional level of Congressional intervention into
m anagem ent which is even m ore contradictory to the purposes of the
W ilderness Act.
A nalytical Framework
To answ er the question of how Congress intended nonconforming
uses to be managed, 1 propose putting to new use an analytical framework
that is commonly used in courts of law. Courts have historically used loose
variations of this fram ew ork to determ ine Congressional intent for contested
statutes. 1 will show how agencies can use this m ethod to resolve
controversial m anagem ent issues. A better understanding of Congressional
intent gives wilderness m anagers a basis for consistent and appropriate
such restrictions as the Secretary deem s desirable: Provided, however, that the Secretary
shall not permanently close or render unserviceable any aircraft landing strip in regular use on
national forest lands on the date of enactment of the Act for reasons other than extreme danger
to aircraft, and in any case not without the express written concurrence of the agency of the
State of Idaho charged w ith evaluating the safety of backcountry airstrips." The Central
Idaho W ilderness Act of 1980, Pub. L. N o. 96-312 § 7(a)(1) ; 16 U.S.C. § 1132.
The Wilderness Act, supra note 5, § 4(d)(1).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
decision-making regarding nonconform ing w ilderness uses. To do this I will
use two complementary analytical frameworks, the rules of statutory
construction and the interpretation of legislative history.
I will apply these to
both the original and subsequent wilderness acts and their legislative
histories. The goal of this undertaking is to provide a substantive foundation
that wilderness m anagers can base m anagem ent decisions on that will be true
to the intent of the W üdem ess Act. I will then apply this process to
wilderness airstrips, one of m any nonconform ing w üdem ess uses. The case
study of w üdem ess airfields iUustrates the complexities inherent in
managing a use which is not dearly defined by law.
The confusion resulting from the W üdem ess Act's am biguity and the
conflicting m andates of subsequent Congresses, is manifested in several
current m anagem ent conundrum s. The Frank Church-River of No R etum
W üdemess has released a draft m anagem ent plan that addresses alternative
m anagem ent schemes for the W üdem ess’ twelve airstrips. The Forest
Service has interpreted the Central Idaho W üdem ess Act as requiring full use
of aU airstrips and has so far rejected altem tives that w ould emphasize
wüdem ess values over air access. In a dedsion w hich more accurately reflects
the intention of the W üdem ess Act, the Alaskan Regional Forester recently
rejected a proposal to perm it helicopter access on twelve existing Alaskan
wüdemesses. In Oregon, the Forest Service recently acquired a private
inholding on the Eagle Cap W üdem ess that contained both a guest ranch and
an airstrip. Whüe air access has been an established use on this previously
private land, the federal w üdem ess has no history of air access. The Forest
Service m ust determ ine how to m anage this airfield in the context of the
W üdem ess Act.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
7
W ith this thesis I hope to provide a template for solving wilderness
m anagem ent uncertainties through the use of this analytical framework.
This is a process that could be very useful to both wilderness m anagers and
conservationists interested in m aintaining m anagem ent of the NWPS that is
consistent w ith the ideals of the W ilderness Act. While this paper will use
wilderness airstrips as a case study, this process can be applied to many other
incom patible uses of wilderness, as well as to other issues and statutes.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
8
CHAPTER 2
ANALYTICAL FRAMEWORK
Introduction
To determ ine w hat Congress’ intentions w ere regarding the
continuation of nonconforming uses of wilderness, I will apply an analytical
process that I have adapted from the practices of judicial interpretation. This
process involves the use of both statutory construction and legislative
interpretation to discover the meaning and purpose of a particular law. I will
apply the rules of statutory construction to all die relevant laws then use the
applicable legislative docum ents to better analyze Congressional intent. For
the case study in this thesis, I wUl focus this process on the discussion and
treatm ent of nonconforming uses of wilderness in the W ilderness Act and
subsequent wilderness legislation. This process provides a sound basis for
making m anagement decisions in am biguous areas of policy.
This type of statutory analysis is commonly used by courts to address
ambiguities or uncertainties in statutes. Analysis of this dep th is less
frequently used by adm inistrative agencies to inform their managerial
decisions. Yet this process can be extremely useful for providing a substantive
and legally informed basis for resolving m anagem ent conflicts. The conflicts
inherent in the statutory language of the W ilderness Act betw een the
m andate to preserve wilderness character and exceptions that perm it
nonconforming uses of wilderness are just one place where this process can
assist interpretation and im plem entation of on-the-ground m anagem ent. I
have laid out a process that is explicit and legally grounded. This process
involves all of the steps employed at different points by the judiciary in its
interpretive work. The analytical framework I am suggesting to m anagers is a
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
1-
systematic, step-by-step progression from construction to interpretation, that
10
provides a thorough and politically defensible basis for difficult
adm inistrative decisions.
The Nature of Statutory Construction
The purpose of a statute is to provide general guidance on a topic or
topics. In m ost cases, statutes speak to "the great mass of ordinary uses" but
do not provide the necessary clarity for application to specific circumstances. ^
It is the role of the adm inistrative agencies, the courts, and lawyers to
interpret statutes so that they m ay be applied to individual fact situations . 2
According to the U nited States Constitution, the only legally effective way to
express the will of Congress is through a statute.^ However, when a statute is
ambiguous, overly general, or contradicts either itself or another statute, the
courts m ay turn to the m ethods of statutory construction and interpretation
to determ ine Congressional intent.
Statutory construction involves the application of both rigid linguistic
and grammatical rules together w ith precedent and common law to the plain
language of a s ta tu te .^ W hen construction is insufficient, interpretation may
be necessary. The author of The Construction of Statutes, distinguishes
betw een construction and interpretation. He defines construction as;
the drawing of conclusions w ith respect to subjects that are beyond the
direct expression of the text, from elements know n and given in the
1 Robert J. Araujo, The Use o f Legislative History in Statutory Interpretation: a Look at
Regents v. Bakke, 16 SETON HALL LEGIS. J. 57, 66 ( 1992)
2 Id. at 132.
3 REED DICKERSON, THE INTERPRETATION A N D APPLICATION OF STATUTES, at 83
(1975).
4 Frederick J. d e SloovereExfrmsic Aids in the Interpretation o f Statutes. 88 U. PA L. REV. 527,
528 (1940).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
text, while interpretation is the process of discovering the true
m eaning of the language used.^
O ther authors expand their use of the w ord interpretation to include the use
of the legislative history of a statute. For the purposes of this thesis, I will be
focusing on both construction and interpretation in the broader sense,
utilizing all aspects of a statute, its history, and its context in the search for
clear meaning.
A t the heart of the process of interpretation is the presum ption that
Congress has a purpose for enacting statutes. This purpose stems from the
legislature's intention to cause som ething to happen or to correct some evil.
Although widely used by courts and legal scholars, the concepts of legislative
purpose and intent are not w ithout controversy and confusion. Therefore,
prior to an examination of how this interpretative process works, I wiU first
explore the philosophical underpinnings of the process beginning w ith the
debate over legislative intent.
Legislative Intent versus Legislative Purpose
There has been debate in legal circles for decades as to w hether
legislative intent can actually exist. The question at issue is w hether a
disparate group of individuals such as a legislature can have a cohesive and
discoverable intent. A famous debate in 1930 betw een two legal scholars.
Max Radin and James Landis, examines this issue.^ Radin argues that the
notion of legislative intent is a fallacy. He says;
A legislature certainly has no intention w hatever in connection w ith
w ords which some two or three m en drafted, which a considerable
num ber rejected, and in regard to which m any of the approving
5 EARL T. CRAWFORD, THE CONSTRUCTION OF STATUTES, at 241 (1940).
6 See generally, Gerald C. Mac CaUum, Legislative Intent, 75 YALE L. J. 754-787 (1966).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
majority might have had, and often dem onstrably did have, different
ideas and beliefs/
H e asserts that even if one could presum e that the hundreds of individuals
comprising a legislature could have the same intent, there is no acceptable
means of determining it. H e goes on to argue that in the rare circumstances
that a legislative intent m ight exist it w ould not be determ inable from the
legislative history of a statute.®
Landis disagrees w ith Radio's terminology and responds by noting that
there are two distinguishable types of legislative intent; that of intended
m eaning an d that of intended purpose.^ The form er is, according to Landis, a
norm al b u t not inevitable aspect of the legislative process which is readily
discernible from legislative proceedings w hen it exists. The latter is often
clearly stated within the text of a statute. In the ensuing years, the academic
and judicial debate over legislative intent has often referred to this dispute,
w ith most authors on the subject aligning themselves w ith one view point or
the other.
W ithin this debate, supporters of Radin have abandoned the use of the
term legislative intent b u t generally have replaced it w ith a discussion of
legislative purpose w ithout clearly distinguishing the difference betw een the
two. Supporters of Landis on the other hand, have relied heavily on general
statem ents about the m eaninglessness of statutes in the absence of an
underlying identifiable legislative intent.^® The intent of a statute m ust be
one assigned by the legislature, this camp argues, for if it is not "intended by
the law makers . . . the law makers do not legislate".
7 Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870 (1930).
® DICKERSON, supra note 3, at 68.
9 James Landis, A Note on Statutory Interpretation, 43 HARV. L. REV. (1930).
10 Mac Galium, supra note 6, at 755.
11 CRAWFORD, supra note 5, at 255.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
12
13
Since the courts have continued to find this concept valid and to search
for intent through statutory interpretation, its existence should not be
dism issed w ithout further examination. One argum ent against the existence
of a single legislative intent focuses on the point that legislatures, being
groups of individuals, cannot have intentions. In short, one m ight argue that
only individuals can have intentions, legislatures are not individuals, and
therefore legislatures cannot have intentions.^ ^ Examining this argum ent
more dosely, however, highlights its deficiendes. A commonly perceived
precondition of having an intention is the capadty for "purposive behavior".
A quick look at the language used for legislatures shows a popular belief in its
ability to act as a whole. Legislatures ’debate’, deliberate’, ’enact’, and ’rejed',
am ong other purposive behaviors. The average reader dearly understands
that these w ords m ean that m embers of the legislature are acting in the form
of the majority. Yet, to say that the legislature acting is nothing m ore than
m any individual legislators acting ignores the "legal significance of the
criteria for determ ining w hether the legislature acted ’.i^ Since the procedure
for accepting legislative action is not random , the legislature has d e a r
param eters under which it offidally acts. Therefore, like corporations, which
are treated like persons for m any purposes in this sodety, legislatures m ay be
presum ed to be enough like people to a d purposefully and as a result, also
have intentions.
The concept of a broad legislative intent ’underlies the very idea of a
legislative process’
Dismissing the existence of a discoverable intent
behind legislative action dismisses any connection between the enactment of
legislation by a body of legislators, and w hat they express through the
MacCallum, supra note 6, at 764-765.
Id. at 767.
17 Id. at 78.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
language of a statute.^® The fact that the concept of legislative intent may
14
have been misused or m isinterpreted does not "deny its im portance as a
fundam ental presupposition of the legislative process" according to
Dickerson, an avowed skeptic regarding Congressional intent.^^
The confusion surrounding legislative intent makes it useful to
distinguish between legislative intent and legislative purpose. The concept of
legislative intent is usually identified w ith an im mediate legislative purpose,
while the term legislative purpose generally relates to a broader ulterior
legislative purpose. A statute is passed to achieve a foreseeable goal which is
"coextensive w ith legislative intent" and which, w hen taken in context,
corresponds w ith "legislative m eaning’’.^® The legislative purpose usually
appears w ithin the text of a statute in a statem ent explaining w hat the
legislature is trying to d o w ith passage of the act. This statutory affirmation of
purpose does not guarantee that the purpose wiU actually be achieved by the
subsequent provisions of a statute however. In some cases, spedfic
provisions may conflict w ith the stated purpose under certain
circumstances.^ i For the purposes of this thesis, I will use the term legislative
intent to refer to both intent and purpose, outside of statutorily dictated
purpose.
Even believers in legislative intent caution that this concept is best
applied on a general level to statutory interpretation. It is easier to determ ine
Congress' intent for enacting the broad purpose of a statute, and more
difficult to find evidence of legislative intent in regards to specific provisions.
Dickerson w arns that if legislative intent is pursued "relentlessly", the
18 d e Sloovere, supra note 4, at 539.
DICKERSON, supra note 3, at 77.
20 DICKERSON, supra note 3, at 97.
21 Id. at 99-100.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
interpreter m ay end up creating a specific intent where none actually exists.^^
W ith these cautions in m ind, I will address different m ethods for uncovering
legislative intent and purpose. The following are a variety of tools
traditionally used by courts of law to determine statutory meaning and
legislative intent. The pros and cons of each are outlined to help understand
their usefulness to this process.
Plain M eaning Doctrine
The plain m eaning doctrine is a well-known rule that the judiciary
applies to statutory interpretation. It requires that where the language of a
statute is d e a r and unam biguous it represents the final m eaning of the
statute. A d e a r statem ent of this doctrine can be found in United States v.
Missouri Pacific Railroad.^^ In this dedsion the court w rote that;
w here the language of an enactment is d e a r and construction according
to its term s does n ot lead to absurd or impractical consequences, the
w ords employed are to be taken as the final expression of the meaning
intended.24
U nder this doctrine, the best way to ascertain a statute’s meaning is through
the statutory language. Only w hen such an analysis w ould yield ’’absurd "
results, or the w ords are un d ear, can other interpretive m ethods be used.
The Suprem e C ourt relied on this doctrine in Caminetti v. United
States 25 w here it refused to refer to the legislative history of the M ann Act
because of the perceived d arity of the statute’s language. The issue at hand
was w hether the M ann Act, which prohibited taking a woman across state
lines for "prostitution or debauchery or for any other immoral purpose ”,
applied to non-com m erdal activities. Although discussion during passage of
22
25
24
25
Id. at 82.
U.S. V. Missouri Pacific RR 278 US 269 (1929).
Id. at 278.
242 U S. 470 (1917).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the Act clearly indicated that Congress was targeting white slavery, the court
16
upheld the convictions for non commercial activities.^^ The dissenting
opinion disagreed that the Act's phrase "for any other im moral purpose", was
clear and unambiguous, referring to the alternative meaning indicated
during pre-passage debate. This case indicates a flaw in the plain meaning
doctrine which is that judges often disagree over w hether a particular
statutory w ord or phrase is in fact
a m b ig u o u s .2 7
The Supreme C ourt decision in United States v. American Trucking
Association^^ retreated from the rule of plain meaning. This case revolved
around w hether the w ord "employee" in the M otor Carrier Act applied to
employees whose duties were unrelated to safety issues. The Court asserted
that even though the language was clear, applying the literal meaning of the
w ords was not in keeping w ith the overall policy goal of the legislation. In
w hat has become a new standard for the application of the plain meaning
rule they noted that "when aid to construction of the meaning of w ords, as
used in the statute, is available, there certainly can be no rule of law' which
forbids its use, however d e a r the w ords may appear on superficial
e x a m in a tio n
" .2 9
Thus, if legislative materials can help, this Court argued,
they should not be ignored.
Canons of Linguistic Construction
Another m ethod for uncovering the meaning of statutory language is
to use the canons of linguistic and grammatical construction. As indicated in
the plain meaning doctrine, if the language of the statute is clear and
26 Leigh Ann McDonald, The Role o f Legislative History in Statutory Interpretation: A New
Em After the Resignation of Justice William Brennan? 56 MO. L. REV. 121,125(1991).
27 Id. at 126.
28 310 U.S. 534 (1940).
29 Id. at 126-127.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
unam biguous, it should be read literally. W hen its meaning is not clear, the
text of the statute may be subjected to construction.3o These canons of
construction have arisen from decades of case law and can be used to guide
judicial and agency interpretation. They are only applicable, however, w hen
the plain meaning is not d ear, and they may sometimes conflict w ith one
another. Their w orth is dependent on "how true they are as generalizations
about custom ary habits in the use of language 'll and by their applicability to
the case at hand. Because the purpose of these rules is to illuminate
legislative intent, they should not be used to frustrate it.32
The following is a list of some of the m ost common canons of
construction used by the courts:
1. W ords in com m on usage should be assigned their ordinary meaning.^)
2. W here a w ord has both technical and popular m eaning the popular
m eaning shall prevail unless otherw ise indicated.34
3. The courts may change the meanings of disjunctive and conjunctive
w ords only to express the obvious intent of the legislature not to
contradict it.^s
4. General w ords should be considered more broadly and specific w ords more
narrow ly .36
5. Noscitur a Sociis - associated w ords may be used to understand an
am biguous w ord or phrase.37
6. Ejusdem Generis - w hen general w ords follow the designation of
particular things they should be construed to include only those things
specifically enumerated.^»
3»
31
32
33
34
35
36
37
38
CRAWFORD, supra note 5, at 315.
SUTHERLAND STAT CONST § 48.15 (5th Ed.).
See generally, CRAWFORD, supra note 5.
Id. § 186 at 316 and SUTHERLAND, supra note 28, § 47.28 at 248.
CRAWFORD, supra note 5, § 187 at 319.
Id. g 188 at 322-323.
Id. § 189 at 325.
Id. § 190 at 325-326 and SUTHERLAND, supra note 31, § 47.16 at 183.
Id. § 191 at 326 and SUTHERLAND, supra note 31, § 47.17 at 188.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
17
18
7. Relative and qualifying terms apply to the word, phrase, or clause
immediately preceding them, not to more rem ote terms.39
8. Reddendo Singula Singulis - w ords in different parts of a statute should
be taken distributively according to their place in the statute.^o
9. Expressio Unius Est Exclusio Alterius - the m ention of one thing implies
the exclusion of another.41
10. Common rules of gram m ar m ay justify the acceptance of one particular
construction over a n o t h e r . ^ ^
11. Courts can abandon the literal m eaning of w ords in a statute only to
achieve an obvious legislative intent.'*^
12. If intention and punctuation conflict, legislative intent should be deferred
to. Courts m ay punctuate, repunctuate or disregard punctuation only
to achieve intended legislative goal.44
13. W ords unintentionally om itted by the legislature can be added by the
courts to complete intended meaning.45
While these canons have been applied w ith m erit in many cases, the
practice of using them is falling out of favor. They are increasingly seen as
rigid, overly mechanical, and restrictive.^^ One flaw is that these linguistic
rules, like the statutes they seek to interpret, are composed of words and are
themselves open to alternative interpretations. Sometimes canons conflict
w ith one another w hen applied to the same issue.47 Thus, the canons of
construction are just one tool, be it an imperfect one, in the toolbox of
statutory interpreters.
39 Id. § 193 at 331 and SUTHERLAND, supra note 31, § 47.33 at 270.
40 Id. § 194 at 332-333 and SUTHERLAND, supra note 31, § 47.26 at 240.
41 Id. § 195 at 334.
42 Id. § 196 at 338.
43 Id. § 197 at 338-339.
44 Id. §199 at 324-343.
45 Id. § 200 at 345.
46 Araujo, supra note 1, at 98.
47 Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Legislative History
Legislative history is the body of inform ation from which legislative
intent can be derived. One author defines legislative history as the
"explanations of the legislators themselves, or the docum ents officially used
by them, in the course of making a specific law."^® Relevant history includes
"all aspects of the internal legislative history of a statute which were officially
before the legislature at the time of its e n a c t m e n t I t includes the statute,
committee reports, relevant debates in the committee of the whole,
committee hearings, and conference reports. Previous drafts of the successful
bill, am endm ents suggested b u t rejected during debate, and similar bills
which did not pass the legislature are also given consideration.50 Portions of
the legislative history outside of the actual statute are referred to as extrinsic
aids. Legislative history is valuable in that it provides the "authoritative
explanations of the purposes or meaning of the language of the resulting
law".5i
Uses of Legislative Historv
Legislative history can illuminate the context in which a statute was
conceived and can lend clarity in the case of confusion or statutory silence.
While it cannot be used to change the plain meaning of the statute, legislative
history can be used to resolve controversy over interpretations of this
meaning. It can also help determ ine Congressional intent as to the scope or
limitations of statutory provisions. W hen using legislative history to
interpret a statute, the courts are not confined to the statutory language at
48 GWENDOLYN B. FOLSOM, LEGISLATIVE HISTORY: RESEARCH FOR THE
INTERPRETATION OF LAWS, at 11 (1972).
49 DICKERSON, supra note 3, at 140.
50 de Sloovere, supra note 4, at 539, 545.
51 FOLSOM, supra note 48, at 12.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
19
hand, but they are confined ^ it 52 Thus, legislative history may not be used
20
to create purposes which do not exist or go beyond the realm of discussion
held by the legislature. The broader and m ore comprehensive the contextual
setting in which the interpreter operates is, the less subjective the interpretive
process becomes.®^
A prim ary use of legislative history is to verify hypotheses which have
been developed on othef grounds. The interpreter should not go to the
legislative history to determ ine w hether am biguity exists, b u t rather should
be directed there by confusion or ambiguity w ithin the statute.54 Historical
analysis should not be pursued unless a d e a r need presents itself. In de
Sloovere’s words, "venturing into the uncharted realm of factual
backgrounds of legislation . . . is still a perilous journey, especially if the
reason for the journey is n ot dearly understood."55
Extrinsic aids also help to illustrate the context in which a statute was
conceived. According to de Sloovere, a careful study of such materials can
provide "a broad and deep grasp of the contextual implications of statutory
language for application to cases by the courts."®* Examining the entire
context of a statute, rather than just the final product, is a valuable aid for
discovering a variety of possible linguistic meanings, the "evils" which
prom pted the drafting of a statute, the atm osphere in which it was enacted,
and the objectives of the legislature.®^
Supreme C ourt Justice Stephen Breyer lists five circumstances under
which he believes the use of legislative history as an aid to statutory
®2 Id. at 17.
®® de Sloovere, supra note 4, at 540.
54 Id.
55 Id. at 533.
5* Id. at 528.
57 Id. at 529.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
interpretation can be justified (Table 1). The first instance is w hen the use of
legislative history can help the court avoid reaching an absurd result. In
Green v. Bock Laundry Machine Co..,®® the Supreme Court looked to the
history of the Federal Rule of Evidence to reach its decision that Congress did
not intend a rule to apply solely to criminal cases despite the specific use of
the term "defendant".®^ W ere just the plain m eaning of the statutory
language relied upon, the result w ould be an ’absurd' situation where a
particular rule of evidence w ould apply only in civil cases.
A second instance w here legislative history is useful is to discover and
correct errors in statutory drafting. In this case, earlier drafts of a bill can be
instructive.
The third circumstance is to discover any special meaning which may
exist for a w ord w ithin a particular statute.®® Breyer presents Pierce v.
U nderw ood
as an example. In this 1988 Supreme Court case involving a
federal criminal statute and the m eaning of the phrase "substantially
justified". Justice ScaÜa indirectly refers to the 1946 House and Senate Reports
for the A dm inistrative Procedure Act which defines this phrase used in this
law.®2
In a fourth scenario, to decide w hether a particular case "falls within
the scope of a w ord or phrase" the court may need to determine the purpose
of that w ord or phrase in the broader statutory scheme. To determine its
purpose the court may ask, "[g]iven this statutory background, what would a
reasonable hum an being intend this specific language to accomplish?"®®
58 Bock Laundry 490 U.S. 504 (1989).
5® Stephen Breyer The Uses o f Legislative History in Interpreting Statutes. S. CA L. REV. 845,
849 (1992).
®0 Id. at 851.
®1 487 U S. 552 (1988).
®2 Breyer, supra note 59, at 852.
®® Id. at 854.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
21
W hen the statutory text cannot clarify this question, the broader context of
legislative history can be an instructive aid.
Finally, when a statute is politically controversial, the legislative
history can help the judiciary choose betw een alternative
in te r p r e ta t io n s .^ ^
This is the area of usage which causes critics the m ost concern. Often the
m ore controversial statutes contain the m ost ambiguity because of the
polarized nature of the debate involved in their passage. In such cases, critics
fear th at a reliance on extrinsic aids will elevate legislative testimony to the
level of law. If the statute is silent or unclear b u t the legislative history
provides clarification, the historical evidence can provide valid insight into
Congressional intent.^®
Table 1. Five circumstances w here the use of legislative history is
appropriate.
1. To avoid reaching an absurd result.
2. To discover and correct drafting errors.
3. To determ ine w hether a special m eaning exists for a w ord within a statute.
4. To determine the purpose of a w ord in the statutory scheme.
5. To help choose betw een alternatives w hen a statute is politically
controversial.
The use of legislative history has both a strong following and serious
detractors. In its support. Chief Justice Marshall w rote that "[w]here the m ind
labors to discover the design of the legislature, it seizes everything from
64 Id. at 856.
65 Id. at 856-857.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
22
which aid can be derived . . .
Another Supreme Court Justice, Justice
23
Frankfurter asserted that "if the purpose of construction is the ascertainm ent
of meaning, nothing that is logically relevant should be excluded."^^
Critiques of the Use of Legislative History
Like the issue of legislative intent, the question of w hether courts
should use legislative history has garnered some controversy over the years.
An increase in the volum e of discussion and criticism of legislative history in
the last decade has reduced its use w ithin the j
u
d
i c
i a
r y
1981, the
Supreme C ourt used legislative history in deciding almost every case before
it. In 1989, however, the num ber of cases decided w ith no reliance on
legislative history was ten out of a total of 65.^^ Despite this possible dow n
trend. Justice Wallace noted in 1991 that "the C ourt’s practice of utilizing
legislative history reaches well into its past, [and we] suspect that the practice
will likewise reach well into the future."^® In view of this ambivalence, I feel
it necessary to examine some of the critiques of this interpretative tool.
The Supreme C ourt does not have a standard position regarding the
use of legislative history in statutory interpretation. Rather, use or dismissal
of extrinsic aids is a m atter of personal belief on the part of the Justices. Some
Justices vary in their use of extrinsic aids while others are staunch believers
in either the use or disregard of legislative history. Former Justice William
Brennan was a firm adherent to the use of legislative history while Justice
Scaha is "an outspoken critic" of deviating from the plain meaning of
statutes.7i This predilection on his part, coupled w ith resignation of
Nunez, R.I. The Nature o f Legislative Intent and the Use of Legislative Documents as
Extrinsic Aids to Statutory Interpretation: a Reexamination. 9 CAL W. L. REV. 128,130 (1972).
67 Id. at 130.
68 Id. at 132 and Breyer, supra note 59, at 846.
69 Breyer, supra note 59, at 846.
70 Id.
71 McDonald, supra note 26, at 121.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Brennan, his ideological counterpoint, will most certainly result in a
24
dow nturn in the use of legislative history in the current Court.
The m ain argum ents against the use of legislative history can be
sum m arized as lack of utility, unconstitutionality, controversy over
legislative intent, historical and international comparisons, and the
availability of extrinsic aids.^^ The m ost frequently heard argum ent is that
legislative history is not useful for interpretation. However, supporters
counter that "[i]f the history is vague, or seriously conflicting, do not use it."73
Legislative history does not have to be useful a t all times for it to have value
in some cases.
The Constitutional argum ent is two-fold; the "statute-is-the-only-law”
argum ent and the delegation argument. The former, focuses on the
Constitutional fact that a statute is the only legally acceptable way to enact a
law. This argum ent ignores the fact that legislative history is not m eant to
supplant the statute but merely to assist in its interpretation. The latter
argum ent is concerned w ith the fact that m uch legislative preparation has
been delegated to statf people and that it may be the w ork and w ords of these
individuals that appears in legislative history documents. H owever, the
Constitution does not prohibit Congress from relying on outside groups or
stciff members for assistance, w hat it does do is limit the pow er to legislate to
m em bers of Congress.^^ Therefore, members of Congress are the only people
w ho can and do officially legislateThe Congressional intent argum ent was discussed sufficiently above
and will not be reiterated here. The historical and international argum ent
holds that the United States today is unique in its reliance on legislative
72 Id. at 861-868.
73 Id. at 861-862.
74 Id. at 863-864.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
25
histories. Legislative history was not used in the nineteenth and early
tw entieth century in this country, nor is it used w ith the sam e zeal in other
countries. However, the current legislative and judicial experience in
America is uniquely characterized by heavy caseloads in the courts and the
availability to the courts an d the public of extensive legislative materials.^s
The final argum ent is that w hen the courts rely on legislative history
to interpret a law, it makes it h arder for citizen's to plan their behavior under
that law. Yet courts will only tu rn to the legislative history where the statute
is unclear in the first place. N or is legislative history difficult to find, as is
often argued. M ost libraries have, at a minimum, sum m ary governm ental
docum entation, and m any large libraries are depositories for copies of all
federal governm ent documents.^^ in addition, w ith the proliferation of
internet inform ation and access, m ore and m ore such docum entation can be
found electronically from any com puter.
It is im portant to remember, as critics are quick to point out, that
legislative history is "not the Rosetta Stone of statutory interpretation"
On
the other hand, neither is it w ithout value. It can be a very useful tool to
interpreters if they understand its shortcomings. I will now examine the
varying im portance of different extrinsic aids to interpretation.
Significance of D ifferent Aspects of Legislative History
The weight given to various aspects of legislative history during
interpretation varies. While the courts cannot always agree on which
legislative materials are acceptable, most agree that extrinsic aids should be
75 Id. at 868.
76 Id. at 869.
77 Araujo, supra note 1, at 61.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
both relevant and reliable to be valid.^® I created the following table (Table 2.^
w hich provides a hierarchy of extrinsic aids, from inform ation culled from
m any different sources. The legislative docum ents included and the general
order of preference they are given, reflects common use by the courts. It is by
no m eans strictly limiting, however.
Committee reports and other related docum ents addressing a statute
are generally given the m ost weight.79 Folsom considers them the
"preem inent sources" and the court in Zuber v. Allen so stated that, "[a]
committee report represents the considered and collective understanding of
those Congressmen involved in drafting and studying proposed
legislation."®^ In fact, between 1938 and 1974, 65% of the total citations to
extrinsic aids were from House and Senate Reports and the Congressional
Record.S2
Statements m ade by legislative sponsors of a bill to the whole cham ber
are next in importance. According to Dickerson, these pronouncem ents
"reveal a legislative intent more significant than that revealed by those of a
m ore casual legislative adherent".®® Where statem ents are pertinent to the
m atter on hand, they are almost always used by the courts.®^ Sutherlands
Statutory Construction uses as an example the weight that was given to the
opinions of the principal supporter of the Sunshine Act in court.®®
Sutherlands cautions, however, that a sponsor may be acting on behalf of a
7® McDonald, supra note 26, at 128.
79 Id. at 128.
®0 Zuber v. Allen, 396 US 168 (1969).
®1 Id. at 186. FOLSOM, supra note 48, at 33.
®2 Id. at 135.
®® DICKERSON , supra note 3, at 73.
®4 MitcheU v. Kentucky Finance Co., 359 US 290 (1959), US v. International Union, 352 US 567,
585-87 (1975), US v. Wrightwood D aiiy Co, 315 US 110,125 (1942).
®5 Symons v. Chrysler Corp. Loan Guarantee Board, 670 F2d 238 (CA DC 1981).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
27
private party and not know any m ore about the particulars of a bill than other
members.®^
In contrast the views of opponents of a bill are rarely assigned m uch
importance.
Their statements, "may tend to overstate the reach of the
provision opposed, [and] are given little probative effect as against the stated
views, or even silence, of proponents."®^ Sutherlands takes exception w ith
this general rule when proponents of a bill have not specifically questioned or
challenged specific statem ents by the opposition.®®
Table 2. Significance of legislative docum ents to interpreting legislative
history in descending order of im portance.
I.
Committee Reports
n
a. Statements of sponsors to the whole chamber
b. Explanations of the Committee Chair
m a. Committee hearings
b. Statements in general debate
IV a. Statements of m em bers of the opposition
b. Amendments or language rejected in committee or on the floor
On a level coequal w ith the previous category are the explanations of
the committee chairperson w hen a bill is reported out of the standing
committee to the committee of the whole. In the process of explaining a biU
to the full legislature, a committee chair m ust answ er specific questions about
it and defend it against opposition. Thus, they m ust have familiarized
®^ SUTHERLAND, supra note 31, § 48.15 .
®^ FOLSOM, supra note 48, at 35. See also. National W oodwork Mfirs. A ss’n v. NLRB 386 US
612, 639-40 (1967); NLRB v. Fruit & Veg. Packers, 377 US 58,66 (1964); Mastro Plastics Corp. v.
NLRB 350 US 270, 288 (1956).
®® SUTHERLAND, supra note 31, §48.15.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
themselves w ith both the bill and the situation in need of remedy. Their
28
statem ents may be taken as the opinion of the majority of the committee.®^
Committee hearings are given less weight by interpreters of legislative
histories. They are generally "concerned w ith the m ore diffuse m atters of
ulterior legislative purpose", and therefore less reliable for resolving specific
questions of statutory intent.^o Some aspects of lengthy or involved statutory
schemes are only discussed is in committee hearings. Statements of
individual members during general debate have historically been discounted
by courts during construction. However, such statements are now considered
acceptable if they are consistent w ith statutory language and other aspects of
legislative history, and if they show "common agreem ent in the legislature
about the m eaning of an am biguous provision."^'
Am endm ents or previous bill language that was discarded also plays a
role in legislative history. W hen certain w ords or phrases were either
elim inated or rejected by the legislature, it indicates that the meaning in
question was not intended o r was no longer acceptable to the
m a jo rity
.^2
Statutory Interpretation and Agency Regulation
Once the legislature completes its Constitutionally delegated task of
creating a law, the adm inistrative agencies are responsible for writing the
regulations that will allow them to carry out and enforce it. These agency
regulations m ust be based u p on the language and meaning of the relevant
statute(s). In this capacity, the executive branch "often is called upon to
89 Id. § 48.14.
90 DICKERSON, supra note 3, at 157.
91 SUTHERLAND, supra note 31, § 48.13. Federal Trade Commission v. Raladam Co. 283 US
643,650, 75 L Ed 1324, 51 S Ct 587 (1931); United States v. City & County of San Francisco 310 US
16, 22,84 L Ed 1050, 60 S Ct 749 (1940).
92 SUTHERLAND, supra note 31, § 48.04.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
interpret statutes long before they appear in court for judicial
29
c o n s t r u c t i o n . "^3
Although their interpretation is not binding upon the judiciary, it is "entitled
to great weight" and is usually accepted by the courts.^^ Agencies m ust
consider Congressional intent in its broadest implication w hen crafting these
régula tions.^5
Agencies often find themselves in the sam e position as the courts,
needing to interpret an am biguous statutory statem ent or provision or
resolving a controversy arising from such an interpretation. In the face of
such controversy, the agency m ust consider w hat Congressional intent was
with regards to the particular aspect of the statute at issue. Thus, this
interpretative process is equally applicable to the w ork of agencies as to courts.
Like the lower courts however, an agency's interpretation of statutory
meaning can be appealed.
C onclusion
While the argum ents against the use of legislative history in statutory
interpretation have merit, they are outw eighed by its potential value.
Although relying solely on the plain language of a statute for interpretation is
ideal, the nature of the legislative process often creates statutes that are
ambiguous, vague, or silent on the issue at hand. In such cases, interpreters,
be they the courts, lawyers, agencies, or citizens, need to uncover
Congressional intent. The legislative history of a statute describes the context
out of which the statute arose. This docum entation often holds explanatory
statements which can elucidate Congressional intent for both broader
CRAWFORD, supra note 5, at 300,
94 Id.
95 WILLIAM P. STATSKY, LEGISLATIVE ANALYSIS: HOW TO USE STATUTES A N D
REGULATIONS 4 (1975).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
statutory purpose and specific provisions. A clear understanding of Congress
po
purpose can inform both judicial and agency decisions. If legislative history is
used w ith a full understanding of its limitations and drawbacks, it can be an
extremely useful interpretative tool.
In the following chapters I will apply this conceptual framework of
analysis to the specific issue of nonconforming uses of wilderness, focusing
on aircraft landing strips and their m anagement today. I wiU spend the next
tw o chapters examining the legislative history of relevant wilderness acts in
the context of this analytical framework. Then I wül examine the Forest
Service’s w ilderness policies, controversies arising from the statutory
ambiguity surrounding incompatible uses, and how this process can be used
to resolve such issues in a m anner compatible w ith Congressional intent.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTERS
THE WILDERNESS ACT OF 1964
Introduction
Before delving into the legislative history of the W ilderness Act, it is
im portant to understand the historical, adm inistrative, and Congressional
context in which the legislation was conceived. After briefly examining the
evolution of wilderness thought in society in general, and die land
m anagem ent agencies specifically, I w ül outline the history of the Wilderness
Act itself. Having thus presented the backdrop for w üdem ess legislation, I
will examine the legislative intent found w ithin this history for w üdem ess
protection and noncordorming uses. This intent w ül be revisited in
subsequent chapters that apply the previously outlined interpretive
fram ew ork to specific m anagem ent issues.
Early W ilderness Thought
By the turn of the last century m ost of the vast w üdem ess which had
m ade u p the American frontier had given way to farm lands and cities.
W üdem ess was no longer seen as a threat, b u t had come to represent both the
pow er of the young nation that had conquered it and its cultural heritage.
Having spent three centuries tam ing it, w üdem ess had become "a symbol
im bedded in our national consciousness - a nostalgia for a lost opportunity".^
Early w üdem ess phüosophers such as Emerson, Thoreau, and M uir played an
influential role in the increased valuation of w üdem ess for spiritual.
1 Michael McCloskey, The Wilderness Act o f 1964 : Its Background and Meaning., 45 OR. L.
REV. 263(1966).
31
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
32
aesthetic, and educational purposes.^ A rise in national prosperity and an
increased scarcity of wilderness heightened the public's interest in w ilderness
preservation.^
The idea that wilderness was an appropriate use of public land had its
origins in the early 1900s. Two Forest Service employees, Aldo Leopold and
A rthur C arhart, were instrum ental in the institutionalization of w ilderness
protection w ithin their agency.^ It was due to the w ork of both these m en
that the agency’s first w üdem ess, the Güa, was established in N ew Mexico.^
A nother early w ilderness proponent w as Bob M arshall, a highly influential
conservationist w ho cham pioned w üdem ess from the Office of Indian
Affairs, the Forest Service, and finally the W üdem ess Society, which he
helped to found. H e w as responsible for institutionalizing w üdem ess in the
Office of Indian Affairs before accepting a position as head of the Division of
Recreation and Lands for the Forest Service.^
During the sam e period, a Yale University forestry professor, H.H.
C hapm an voiced concern over the insufficiency of existing adm inistrative
protection for wüdem ess. He argued for congressional protection of a
national w üdem ess system m anaged by the current caretakers of these areas.
In 1939, Franklin Delano Roosevelt's Secretary of the Interior, H arold Ickes,
joined in the caU for congressional designation and protection of wüdem ess.^
2 See generally, RODERICK NASH, WILDERNESS A N D THE AMERICAN MIND. (3rd ed.
1982).
3 McCloskey supra note 1, at 288.
* JOHN C. HENDEE ET AL., WILDERNESS MANAGEMENT, at 100 (1990).
5 CRAIG W. ALLIN, THE POLITICS OF WILDERNESS PRESERVATION, at 69 (1982)
6 Id. at 82.
2 HENDEE, supra note 4, at 102.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
33
W ilderness R egulations in the Forest Service
In response to this public trend, recognition and protection of wild
areas was increasing institutionally w ithin the agencies In 1927, the Chief of
the Forest Service announced plans for a ban on road building and
developm ent in areas w ith w üdem ess character.® Also in the m id 1920's, the
Forest Service began to take inventory of the wilderness remaining w ithin
the national forests. As a direct result of this survey, administrative
regulation L-20 was prom ulgated in 1929, providing the first systematic
protection for w üdem ess ever. The L-20 regulation listed perm itted and
prohibited uses for the agency's prim itive areas. However, many uses which
did not conform with w üdem ess preservation were perm itted - logging,
grazing, and some road buüding. These regulations w ere not considered a
long-term commitment b u t rather a form of tem porary protection and were
only nom inally enforced.^
A general dissatisfaction w ith the efficacy of the L-20 regulations
resulted in the developm ent of the "U Regulations", U-1, U-2 and U-3(a), in
1939. Bob Marshall was instrum ental in the prom ulgation of these new
regulations which w ere aim ed at long-term protection for roadless portions of
the national forests.^® These regulations embodied a phüosophical and
adm inistrative leap forw ard in w üdem ess protection and a broader
recognition of w üdem ess values. The USFS M anual for that period noted
that "[wlüdemess areas provide the last frontier where the world of
mechanization and of easy transportation has not yet penetrated. They have
an im portant place historicaUy, educationally, and for recreation."”
8 Id.
9" Id.
la. at
ai 100,
iuu.
ALLIN, supra note 5, at 82-83.
11 HENDEE, supra note 4, at 101.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
34
The U Regulations instituted three land use designations w hich could
be applied to existing prim itive areas; "wüdemess", "wüd", and "roadless".^^
W üdem ess and w üd areas differed in size requirem ents and were established
by different levels of the adm inistration b u t w ere m anaged identicaUy. These
regulations prohibited logging, road construction, and perm anent structures
in these areas and banned m otorized access except where previously
established. Permitted uses included grazing, w ater resource development,
and mining. Before existing prim itive areas could be reclassified as
w üdem ess or w üd they underw ent a review process. During the review
period these areas w ere m anaged according to the new regulations and were
protected from many extractive uses.^3
The review process proceeded slowly, halting altogether during W orld
W ar
By the end of the forties, only two mUlion of the potential 55
million acres had been classified as wÜdemess.i® Conservationists w ere
unhappy w ith the pace of reclassification and expressed fears that low er
elevation timbered areas w ere being lost through this process. This
adm inistrative protection of w üdem ess left m uch of the decision making to
the discretion of agency personnel whose com mitm ent to w üdem ess
preservation varied. Changes in adm inistration could radically affect the
course of preservation and created an atm osphere of u n c e r ta in ty .T h u s , a
push began for a CongressionaUy m andated and secure program of w üdem ess
protection.
Wilderness areas were defined as areas over 100,000 acres in size; w ild areas had 5-1000,000
acres, and roadless areas were over 100,000 and were managed primarily for recreation,
however, logging was permitted if provided for in the area’s management plans. The only
areas that were classified as roadless areas w ere 3 sections of the Superior NF w hich were
combined to form the Boundary Waters Canoe Area in 1958.
13 HENDEE, supra note 4, at 101.
14 Id.
15 Id. at 102.
16 Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
35
The Birth of the W ilderness Act
In 1949^ the Legislative Reference Service of the Library of Congress
released a research docum ent entitled The Preservation of Wilderness Areas:
An Analysis of Opinion on the Problem. This report, w ritten by C. Frank
Keyser, was a survey of existing inform ation and thoughts on the wilderness
idea. Members of Congress had requested this study to provide background
for potential legislative action on w ilderness designation.^^ Their interest
was spurred by the lobbying of H ow ard Zahniser, the Executive Secretary of
the Wilderness Society and an influential proponent of wilderness protection
until the day he died, four m onths before the passage of the W ilderness Act.^®
Keyser’s report supported the need for legislative protection of wilderness
and expressed concern over the preservation of wilderness under the current
m anagem ent structure. It also noted widespread public support for
wilderness protection.
In May 1955, H ow ard Zahniser gave a speech entitled "The N eed For
Wilderness Areas", which outlined a specific program for preserving
wilderness within the public domain.20 Zahniser believed that a cohesive
program of wilderness protection w as crucial to the preservation of the
remaining wUd areas. A national system w ould eliminate the fragm entation
and uncertainty of the prevailing m anagem ent regime.
Senator H ubert H.
H um phrey (D-MN) was captivated by the idea and inserted the speech into
the Congressional Record, effectively bringing the argum ent into the
legislative arena.^i
17 CONGRESSIONAL QUARTERLY ALMANAC Vol. XX, 88th Cong. 2nd Sess., at 487 (1964).
18 HENDEE, supra note 4,102-103.
19 Id. at 102.
29 ALLIN, supra note 5, at 104.
21 101 CONG. REC A3809-12 (daily ed. June 1,1955).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Zahniser and his fellow wilderness supporters had three goals for
wilderness legislation; 1) that it be as unam biguous as possible, 2) that it be
supported by a united coalition of groups, and 3) that opposition be
m inim ized as much as possible .22 The first wilderness bills were drafted on
these premises. The idea of a congressionally m andated system of wilderness
was opposed by both the Forest Service and the Park Service at the outset.
These agencies felt that such legislation was unnecessary and feared that it
m ight set a precedent for other special interest groups to secure statutory
protection for their uses, like grazing or inining.23 The Park Service was
concerned that wilderness protection of their lands w ould decrease if placed
into a national system w ith Forest Service
w ild e m e s s .2 4
Despite agency opposition. Senator H um phrey urged conservationists
to draft a wilderness bÜl which Zahniser did w ith the help of the Sierra Club,
the National Parks Association, the N ational Wildlife Federation, and the
Wildlife M anagem ent Institute.25 The wilderness proposal produced by this
coalition became the first wilderness bill introduced in the United States
Congress in 1956. Passage of wilderness legislation, however, w ould be a long
time in coming.
Legislative History of the W ilderness Act
Sum m ary
During the. nine years it took for a wilderness bill to successfully
emerge from Congress, 65 different wilderness bills were introduced. A total
of eighteen hearings were held across the country, hundreds of witnesses
22 HENDEE, supra note 4, at 103.
23 Id.
24 a l l i n , supra note 5, at 110.
25 HENDEE, supra note 4, at 104.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
36
37
spoke, and thousands of pages of testimony w ere produced.^^ Over the course
of those years, many changes were w rought to the bill so that the final law
differed substantially from Zahniser's original draft. Through each successive
attem pt, more compromises were m ade and m ore opposition to the bül was
rem oved until passage was finally possible in 1964.
The original wilderness bUl included for study 65 million acres of lands
of the Park Service, the Forest Service, the National Wildlife Refuges and
Game Reserves, and the Bureau of Indian Affairs.^^ All designated Forest
Service wilderness, wild, and canoe areas w ould im mediately become p art of
the new wilderness system and primitive areas w ould be temporarily
included .28 In its final form, the NWPS of 1964 w ould include only 9.1
million acres of these Forest Service wildem ess-type areas, w ith the
rem aining Primitive areas slated for wilderness study.29
Thé first bUls prohibited development, logging, new mining, dams,
roads, aircraft, m otorboat use, and commercial enterprise. They set u p a
National W ilderness Preservation Council which was eventually removed.
This was to be a group of agency heads and conservationists charged w ith
reviewing wilderness recom m endations and advising Congress and the
adm inistration on designation decisions. In these early versions of the
legislation, the executive branch was given the pow er to m ake allocation
decisions subject to Congressional veto. The allocation issue became a
sticking point throughout the later years of debate.^® This balance of pow er
26 McCloskey, supra note 1, at 298.
27 j a c k M. HESSION, t h e LEGISLATIVE HISTORY OF THE WILDERNESS ACT, at 16
(1967).
28 Id. at 18.
29 The Wilderness Act of 1964 § 3(2)(b) 16 U.S.C. § 1131 et seq.
30 HESSION, supra note 27, at 98-103.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
w as reversed by the final bill which gave Congress the pow er of affirmative
38
action on wilderness designation.^ i
The Earlv. Years of Debate
In July of 1956, Hum phrey and nine other Senators introduced the first
piece of wilderness preservation legislation in the Senate. Four days later.
Representative John Saylor (R-PA) introduced identical com panion
legislation in the House.32 While no action was taken on any of these bills
due to the late date in the session, it was an im portant first step on the long
road to eventual passage.33 The first hearings were held on w üdem ess
preservation proposals durm g 1957. The Senate Interior and Insular Affairs
Committee, chaired by James M urray (D-MT), held hearings on tw o bills, S.
1176 and S. 4028; the former was opposed by the Departm ents of Agriculture
and the Interior, and the latter was endorsed w ith reservations.^* The House
Interior Committee also held hearings on w üdem ess legislation b u t no record
of these hearings was pubUshed.^s Support for the creation of a w üdem ess
system continued to grow, w ith letters regarding the legislation running 20 to
1 in favor of w üdem ess preservation.^^ In 1959, hearings were held by the
House Interior Committee, under the leadership of W ayne AspinaU (D-CO)
who w ould be a formidable opponent of w üdem ess legislation over the next
six years. The Senate Interior and Insular Affairs Committee also held
hearings but no büls were reported to the floor of either house that year.^^
The Wilderness Act, supra note 29, at § 3(b).
32 a l l i n , supra note 5, at 107. [S. 4013 and H.R. 11703.]
33 Id. at 108.
34 CONGRESSIONAL QUARTERLY ALMANAC, supra note 17, at 489.
35 HESSION, supra note 27, at 14, 93.
Wilderness Preservation System, 1958, Hairing on S. 4028 Before the Senate Committee on
Interior and Insular Affairs, 85th Cong., 1st Sess., at 21.
37 CONGRESSIONAL QUARTERLY ALMANAC, supra note 17, at 489.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
L e^slative Success
1961 dawned a positive year for wilderness legislation. Clinton
A nderson (D-NM) took over as chair of the Senate Interior Committee,
introducing wilderness bül S. 174 almost immediately. The newly elected
President John F. Kennedy urged passage of w üdem ess legislation in his
natural resources message to Congress. Both the Secretaries of Interior and
Agriculture, Stewart Udall and OrviUe Freeman, endorsed S. 174 completely
after years of reservations.^® The Departm ent of Agriculture w rote that
"enactment of S. 174 w ould be desirable resource legislation and in the
national interest".®^ UdaU stated that the adm inistration was "deeply
com m itted to the enactm ent of a bül simÜar [to this]".*® W ith Frank C hurch
(D ID), acting as the floor manager, thé biU was passed by a vote of 83-13 on
Septem ber sixth.* '
N o paraUel steps w ere taken in the House, however, and the biU once
again faüed to become law. The foUowing year, the House Interior and
Insular Affairs Committee held hearings on their ow n version of the
w üdem ess bül, H. 776; a measure which was widely criticized by the
conservation community. On A ugust 9, the House Public Lands
Subcommittee reported their altered version of this biU, which perm itted
m in in g to the fuU committee. It was reported out of committee to the
H ouse under a suspension of rules oh August 30, a m aneuver which blocked
the addition of any new amendments. The biU’s supporters were unable to
3® HESSION, supra note 27, at 72.
Wilderness Preservation System, 1961: Hearings on S. 174 Before the Committee on Interior
and Insular Affairs, 87th Cong., 1st Sess. at 15.
*0 Id. at 18.
*^ Congressional Quarterly Weekly Report, August 8,1961, at 1565.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
39
gather the necessary two-thirds majority for passage under suspended rules
40
and the m easure failed.*^
The Senate once again took the lead on this legislation in 1963, passing
S. 4 w ith the fuU backing of the Kennedy adm inistration. This biU was
virtuaUy identical to the successful Senate bUl of 1961. Strong opposition to
wilderness legislation in the House, however, precluded passage once again.
In his budget message in January of 1964, President Lyndon Johnson
specificaUy requested the passage of wilderness legislation during the
upcom ing year.43 The H ouse Interior and Insular Affairs Committee once
again held hearings and finaUy reported a bUl to the floor in July of 1964. The
Senate passed S. 4 by a voice vote once the House took action, and in A ugust a
conference report on the biU successfully passed both houses. O n September
3, 1964, after nine years of debate, revisions, and countless hours of hearings,
PubUc Law 88-577, the Wilderness Act, was signed into law by President
J o h n s o n .4 4
The W ilderness Act of 1964
Throughout the nine years of its m aturation, the W ilderness Act went
through many alterations, both m inor and major, while m aintaining its
fundam ental outline. Its long title reads "An Act: To establish a National
Wilderness Preservation System for the perm anent good of the whole people,
and for other purposes." The second section of the bill is a statem ent of
policy, followed by a definition of "wilderness" in the context of this
legislation. The Act refers to wilderness as an area which is "untrammeled by
4 2 Id .
43 CONGRESSIONAL QUARTERLY ALMANAC, supra note 17, at 490.
44 Id . at 485.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
man, w here m an himself is a visitor who does not remain".*^ Then the
41
definition is narrow ed dow n to four characteristics of a potential w üdem ess
area. To qualify for w üdem ess designation an area m ust be; (1) primarily
unaffected by the work of man, (2) have "outstanding opportunities for
solitude or a primitive and unconfined type of recreation", (3) be m ore than
5,000 acres or large enough "to make practicable its preservation and use in an
unim paired condition, and (4) it may also have "ecological, geological, or
other features of scientific, educational, scenic, or historical value".^^
Section 3 of the Act deals w ith the extent of the system; which lands
w ould immediately become w üdem ess and which w ould be studied for later
inclusion, how wilderness w ould be classified, w ho was responsible for
d e si^ a tio n , and the m ethods for modifying the w üdem ess system. Section 4,
"Use of w üdem ess areas", first indicates that the purposes of the Act are
"within and supplem ental to" the present uses of the land and that the Act
does not interfere w ith certain existing statutes. Section 4(b) informs land
m anagers that they are responsible for "preserving the wüdem ess character of
the area" and that the w üdem ess under their care "shaU be devoted to the
public purposes of recreational, scenic, scientific, educational, conservation,
and historical use."47
The foUowing two subsections address acceptable uses of wüdem ess.
Section 4(c), "Prohibition of certain uses", states that within designated
w üdem ess there w ould be no "use of m otor vehicles, m otorized equipm ent,
or motorboats, or landing of aircraft". This is foUowed by an exception in
4(d)(1) that aUows that;
The Wilderness Act, supra note 29, § 2(c).
46 Id.
47 Id. § 4(b).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
W ithin wilderness areas designated by this Act the use of aircraft or
motorboats w here these practices have already become established may
be perm itted to continue subject to such restrictions as the Secretary of
Agriculture deems desirable.**®
42
This is the section of most interest to this paper, as it deals w ith the guidelines
for aircraft use within wilderness areas, and is the one I wül return to. The
final section explains the provisions affecting private or state landholders
w ithin w üdem ess areas, and finaUy, the last section governs protocol for the
acceptance of gifts, bequests, and contributions to the NWPS.
The W ilderness Concept According to the Original Sponsors
As outlined in Chapter Two, the statem ents of a statute’s prim ary
proponents, particularly m em bers of the committee which considered the
bül, are one of the most convincing indicators of Congressional intent.
These are the members of Congress w ho had the strongest working
knowledge of a statute and who have taken part in the machinations of the
committee's w ork and have the m ost exposure to the statute.
Statements
m ade before the committee of the whole hold the most weight, foUowed by
statem ents w ithin the considering committee. Statements from hearings on
a bill can be useful when they touch upon an aspect of the proposed
legislation which is not debated by the whole.
Thus Congressional intent behind wilderness legislation can be
elucidated by the w ords of its sponsors and major proponents. The
statem ents of these individuals present a clear view of w hat they hoped to
preserve w ith the creation of a w üdem ess preservation system and why they
felt such a system was needed. They spoke of the values of wüdem ess and
the qualities which make a w üdem ess experience unique and im portant.
48 Id. § 4(d)(1).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
They also provide some explanation and justification for their emphasis on
43
m aintaining the status quo on lands entering the wilderness system.
A m ain goal of wilderness legislation was to protect areas w ith
wilderness chcu*acter from the pressures of an expanding population. In the
w ords of Senator Hum phrey, a principal sponsor of wilderness legislation in
the Senate;
O ur civilization m oves fast. O ur population pressures are growing.
The time when we have the opportunity to provide for the
preservation of wilderness w ithout having to interfere w ith other
program s will not be w ith us for long.^^
He and the other proponents felt that m any existing wilderness areas were
"in a precarious position because [they] lack adequate legal protection against
pressures for commercial and exploitative encroachments." A major
assum ption behind the legislation was that, in the w ords of sponsor
Representative John Saylor (R-PA), "our civilization is such that no areas will
persist unexploited o r underdeveloped except those that are deliberately set
aside and faithfully
p r o te c te d '
.^o
Senator Morse, a co-sponsor of the original wilderness bill sang the
praises of the w üdem ess experience on the floor of the Senate, emphasizing
the proximity to "God Almighty" that can be found in primitive areas. In his
words;
We cannot justify, in our generation, the destruction of these great
areas of w üdem ess . . . . There is no timber interest, there is no mining
interest, there is no grazing interest, there is no economic interest that,
in my judgment, has any right to be placed above the great need of
preserving one of the great spiritual strengths of America which is to
be found in these untouched and untapped wüderness areas .51
Wilderness Presermtion System, 1957, Hearing on S. 1176 Before the Senate Committee on
Insular and Interior Affairs, 85th Cong. 1st Sess., at 30.
50 Id. at 276.
51 107 CONG. REC. S18353 (daily ed. September 6,1961).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Several proponents addressed themselves to the opposition and w hat
44
one m em ber termed "gross misconceptions" of w hat the legislation w ould
actually do.52 Morse emphasized that units of the proposed system w ere areas
1) already in federal ownership, 2) within agencies w ith purposes consistent
w ith w üdem ess preservation, and 3) that have m aintained their wilderness
condition while serving the public purposes of their park, forest, or refuge.
He assured skeptics that "no new Federal lands will be created, and no new
w üdem ess areas wül be created by this bül".53
As mentioned above, die proposed system w as carefully crafted to
minimize opposition by not reaching too far. Supporters wished to protect
the qualities and characteristics of existing w üdem ess areas w ithin the public
dom ain b u t could not do so if their bill was politicaUy untenable. The NWPS
w ould m aintain the status quo of the time of designation in these areas,
protecting them from further degradation and development. Frank Church,
a long time w üdem ess supporter and member of the Senate Interior and
Insular Affairs Committee, asserted that ”[n]o one wül be adversely affected by
passage of the bül. It has been carefully draw n to give all possible protection
to the economic interests of the West."^^
As to the quality of the resource they sought to protect. Senator
H um phrey clarified his definition of wüdem ess as "the native condition of
the area, undeveloped, so to speak, untouched by the hand of m an or his
Id. Senator Frank Church.
53 Id. at 518352.
54 Id. at S18354.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
m echanical products" .55 His definition incorporates an absence of
m echanization as a core ingredient. He saw wilderness as a place "for people
to m ake their way into . . . w ithout all of the so-called advances of
m odernization and technology".®^ He feared that "pressures for roads and
non-w üdem ess recreational and tourist developm ents threaten in m any
places to destroy the prim eval back-country wildemess".®^
Church spoke directly to the issue of nonconforming w üdem ess uses
in his statem ent to the Senate;
Since uses inconsistent w ith wilderness eliminate w ild e m ^ s, it is
logical to conclude that if we w ant wilderness we shall have to exclude
such incompatible uses in areas to be preserved as wilderness. Such a
procedure is completely consistent w ith a multiple-use philosophy.5®
The preceding com m ents dem onstrate some of the ideals that w ere
behind the long battle for a unified system of wilderness protection.
Com m on themes found in the rhetoric of the sponsors include the need to
preserve a certain quality of wilderness for future generations. This quality is
more than just a physical characteristic of the land, but also encompasses the
challenge to the hum an spirit to travel primitively and be free from
rem inders of mechanized society. These statements bolster the firm
preservationist language of the final Wilderness Act and m ust be taken into
account w hen balancing the various ambiguities found w ithin the statute as.
The Evolution of "Special Provisions"
By the time the first draft of the Wilderness Act appeared in the Senate
in 1956, the bill had been shaped by years of thought and planning by
55 Hearings on S. 1176, supra note 49, at 19.
56 Id. at 20.
57 Id. at 26.
58 107 CONG. REG., supra note 51, at S18355.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
45
conservationists. It is im portant to look to that first draft for the original
46
intent of the legislation. As m entioned above, the drafters tried to write a bill
which w ould eliminate opposition to the proposal and avoid ambiguity.
Subsequent substantive changes to the bill reflect the m ultitude of
compromises necessary for passage. I will now focus on how the specific
sections governing aircraft and other m otorized uses in wilderness areas
changed over time.
Section 3 of the draft version presented to the Senate Interior and
Insular Affairs Committee, entitled "Special Provisions", (b) read;
Within such areas, except as otherwise provided in this section and in
section 2 of this act, there shall be no road, nor any use of m otor
vehicles, or motorboats or landing of aircraft, nor any other mechanical
transport or delivery of persons or supplies . . . in excess of the
minimum required for ttie adm inistration of the area for the purposes
of this act.59
This section provides guidance for limiting these uses. Section 3(c) addresses
exceptions to these guidelines,
the use of aircraft or m otorboats w here these practices have already
become well established may be perm itted to continue, subject to such
restrictions as the Chief of the Forest Service deems desirable. Such
practices shall be recognized as non-conforming uses of the area of
wilderness involved and shall be terminated whenever this can be
effected with equity to, or in agreement with, those making this use.
(emphasis added)^®
The bill’s crafters dearly felt that m otorized uses were not compatible
w ith the wilderness character they sought to preserve. While maintaining
the status quo where such uses were "well established", the bUl w ould phase
out non-conforming uses in time. This w ould adjust the current status quo
to be more in line w ith wUdemess values. The initial w ording of this
subsection is particularly telling w hen com pared to the final version.
Hearings on S. 1176, supra note 49, at 6.
60 Id. at 19.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Opponents of the bill were not pleased w ith the fate the bill outlined
for m otorized uses. G ordon Rule, legal counsel for the National Association
of Engine and Boat M anufacturers Inc. told the Senate Interior Committee
that his organization saw section 3(c) as an "absolute prohibition" of new
m otorboat use in wilderness, and the next statem ent as a m andate to
elim inate existing uses .^2 He argued that regulations for aircraft and
m otorboat use were already in place for Forest Service wilderness areas, and
thus new regulations w ere not needed. Wilderness proponents appear to
have responded to these complaints according to their original goal of
minimizing opposition. R ather than risk alienating potential supporters, the
drafters partially acquiesced on this point.
The 1958 version. Senate biU 4028, retained most of the same language
regarding aircraft and m otorboat use except for one crucial change. Section
3(c), no longer contained the language terming motorboat and aircraft uses
"non-conforming" uses that had to be eliminated. Additional change came
w ith the following version, S. 1123, in 1959. Concerns of the timber industry
and land m anagem ent agencies prom pted the inclusion of language
permitting the use of aircraft and other motorized transport for the control of
fire, insects and the spread of disease in the forests. Under section 3(c)(1) after
"deems desirable", the following was inserted;
W ithin national forest areas included in the WUdemess System such
measures may be taken as may be necessary in the control of insects
and diseases, subject to such conditions as the Secretary deems
desirable.^3
62 Id. at 276.
National Wilderness Preservation A ct o f 1959, Hearings on S. 1123 Before the Senate
Committee on Interior and Insular AJfairs, 86ih Cong. IstSess.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
47
While the m ain substance of these sections rem ained essentially the same,
48
the prohibitions had been reined in and the exceptions broadened to
m inim ize conflicts.
Conclusion
Senator Anderson, Com mittee chairm an sum m arized his overview of
the legislation's history saying that;
proponents were pretty well satisfied w ith the bill as drafted. They feel
they have come a long way from their original position, but that they
have given u p some things in the bill that they consider im portant to
their purposes.*^
H e stated that the opposition to the bUl; the Faim Bureau, lumbermen, oil
people, mining interests and others, now realized that "wilderness is
i n e v i t a b l e " .
He continued to state that throughout the years of debate there
had been "almost unanim ous support for the basic purpose of a wilderness
bill". The debate had been focused on disagreem ent regarding how m uch
wilderness, how it should be designated and how stringent preservation
w ould be. Anderson noted that considerable opposition had been w ithdraw n
as a result of compromises by the proponents of the bill.66 Interior Secretary
Udall saw S. 174 as a "reasonable compromise" on the p art of all parties which
"resolves many of the past objections'.67
A review of the legislative history behind the use of aircraft in
wilderness indicates the attitude of wilderness proponents tow ards this use.
While the original bill indicated the sponsors’ awareness that airfields and
aircraft did not conform w ith wilderness, some level of use was perm itted to
64 HESSION, supra note 27, at 1.
6 5 Id .
66 Id. at 2.
67 Id. at 18.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
minimize opposition. Both the statutory language and statem ents of the
49
bill's authors, indicate that aircraft use could be tolerated at existing levels, b u t
w ould not be expanded. The original sponsors of the bill wanted this
nonconform ing use to be elim inated, how ever, compromise rem oved this
explicit stipulation. The strongest statem ents by proponents of the bill focus
on the values and character of the w ilderness resource they were seeking to
protect- This was clearly, in their m inds, a wUdemess devoid of m ost of the
impacts of man and his mechanical products. While the strategy of
maintaining the status quo necessitated œ m prom ising that character, the
discretionary m anagem ent pow er given to the agencies w ould allow them to
minimize the conflicts betw een such uses and wilderness character.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER FOUR
WILDERNESS AIRSTRIPS
Introduction
There are currently fifteen aircraft landing strips on national forest
wildernesses in the coterminous states. These strips are found on the Frank
Church-River of No R eturn W ilderness in Idaho, the Selway-Bitterroot
WUdemess which straddles the Idaho-M ontana border, and the Great Bear
WUdemess in northem Montana. This num ber does not include landing
strips on either private or state wUdemess inholdings. This discussion
excludes fixed-wing aircraft access to Alaskan wUdemesses which is perm itted
u n d er the Alaska National Interest Lands Conservation Act (ANILCA).i
The WUdemess Act of 1964 immediately designated 9.1 mUUon acres of
Forest Service wUd, wUdemess, and canoe areas as units of the National
WUdemess Preservation System. It set out provisions for determ ining the
suitability of Forest Service Primitive areas for inclusion in the system w ithin
ten years, and for reviewing the wUdemess potential of aU large roadless areas
w ithin the D epartm ent of Interior. The management provisions of the Act,
however, only directly applied to the 54 units classified as wUderness in 1964.
Those Primitive areas that were later included in the NWPS w ould also be
m anaged under the 1964 Act. The Act left the door open for special
m anagem ent provisions for future wUdemesses.
As referred to in Chapter Three, one of the main reasons given for
establishing a national wUdemess system was consistency of management.
W idespread use of special provisions for post-1964 wildernesses w ould
t Alaska National Interest Lands Conservation Act of 1980, Pub. L. 96-487 § 1110,16 U.S.C. §
3101 et seq..
50
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
underm ine the consistency of w ilderness in the NWPS.^ Perhaps seeing the
51
error of this omission. Congress has applied the provisions of the original Act
to subsequently designated wUdemesses, affirming that they w ould be
m anaged in the same m anner as the existing units. W ilderness enabling
legislation usually includes a statem ent sim ilar to the following excerpt from
the Great Bear W ilderness Act,
The [designated wilderness] shall be adm inistered by the Secretary [of
Interior or Agriculture] in accordance w ith the provisions of the
Wilderness Act governing areas designated by that Act as wilderness
areas, except that any reference in such provisions to the effective date
of the W üdemess Act shall be deem ed to be a reference to the effective
date of this Act.)
This practice did not preclude the use of special provisions, but restricted such
exceptions to specific areas
Special m anagem ent provisions occur in response to unique attributes
or circumstances in an area, powerful special interests, or concem regarding
ambiguities in the original WUdemess Act.
The Eastem WUdemess Act
responded to the concern that many potential wUdemesses in the east failed
to m eet the size and purity requirem ents of both the WUdemess Act and
Forest Service policy. It was also a reaction to the fact that a high percentage
of the remaining undeveloped lands in the East were privately ow ned and
that opportunities for preserving public land were dwindling fast.) This act
contains two unique clauses; (1) it gives the Secretary of Agriculture the
pow er to condem n private land w ithin wUdemess boundaries when
landow ners are not m anaging their property in a m anner compatible w ith
2 JOHN C. HENDEE ET AL., WILDERNESS MANAGEMENT, at 119 (1990).
3 The Great Bear Wilderness Act of 1978, Pub. L. No. 95-546 § 3 ,1 6 U.S.C. 1132.
^ HENDEE, supra note 2, at 119.
5 Id. at 134.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
52
wilderness values and (2) wilderness and wilderness study areas designated by
this act w ere w ithdraw n from mineral entry
The Colorado W ilderness Act provides an example of the influence of
special interest groups on wilderness legislation. Grazing is another
nonconform ing use which the W ilderness Act allowed to continue if
previously established. As w ith aircraft landing strips and motorboat use,
grazing was "subject to such reasonable regulations as are deemed by the
Secretary of A griculture"/ During the Forest Service's Roadless Area Review
and Evaluation (RARE IE) process in the late 1970's, grazing permittees
became increasingly concerned by the Forest Service’s use of its statutory
discretion to limit wilderness grazing. Livestock operators feared that this
adm inistrative trend w ould eventually result in the phase out of grazing in
designated wilderness.®
During deliberations over the Colorado Wilderness Act, Congress
included language in the cornrnittee report. House Report 96-617, further
protecting w üdem ess grazing. The provision, which became known as the
Colorado Grazing Guidelines’, stated that;
there shall be no curtailments of grazing in wilderness areas because an
area is, or has been designated as wüdemess, nor should wüdem ess
designations be used as an excuse by administrators to slowly "phase
out" grazing.^
The report stipulated that these guidelines w ould be "promptly, fuUy, and
düigently im plem ented” by the Forest Service and applied to aU the agency’s
w üdem ess lands.^® WhÜe the provision explicitly explained that it did not
® Eastern Wilderness A ct, Pub. L. 93-622 (1974), 16 U.S.C. § 1132.
7 The WUdemess Act of 1964 Pub. L. No. 88-577 § 4(d)(4)(2) 16 U.S.C. § 1131.
® Frank R. Beum, Nonconforming Wilderness Uses: Confounding Issues and Challenges in
PREPARING TO MANAGE WILDERNESS IN THE 21ST CENTURY, Proceedings of the
conference, USDA Forest Service GTR SE-66 at 109 (1990).
9 H R. REP. NO. 96-617, (1979).
10 Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
53
am end the Wilderness Act, it w as to guide Forest Service interpretation of the
Act on all wilderness lands.i^
The Wilderness Act's language governing aircraft landings is also open
to agency interpretation. The Act clearly gives the Secretary of Agriculture
discretion to regulate this use in areas where it was previously established
and prohibits it where absent prior to designation. The Selway-Bitterroot, the
Frank Church, and the Great Bear WUdemesses had established aircraft usage
before they were designated as wilderness. The Selway-Bitterroot was
established by the 1964 Act and subject only to the provisions therein.
However, the Great Bear and Frank Church Wildernesses were not
designated until 1978 and 1980 respectively. Proponents of air access in both
these areas had a strong interest in limiting the Forest Service's discretion to
eliminate aircraft use. This problem was dealt w ith differently for both areas,
but w ith similar results. The Central Idaho Wilderness Act included
statutory language further protecting air access to this area. The Great Bear
Wilderness Act contained no such language in the law, but addressed the
issue in the committee report. This report's language has become the basis
for management of the single airstrip on the Great Bear.
The Central Idaho W ilderness Act
On July
2 3 ,1 9 8 0 ,
President Carter signed into law the Central Idaho
Wilderness Act (CIWA), creating w hat was then the largest wilderness area in
the lower 4 8
s ta te s .^ 2
xhis bUl designated
2 .2
million acres of wilderness in
central Idaho and added 105,600 acres to the Selway-Bitterroot Wilderness in
Î 1 The Wilderness Act, supra note 7, § 1133.
12 The Central Idaho W üdem ess Act of 1980, Pub. L. No. 96-312; 16 U.S.C. § 1132. The Death
Valley Wilderness managed by the NFS in CA is now the largest w üdem ess in the coterminous
states.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Idaho. It also gave Wild and Scenic status to 125 miles of the Salmon River.
54
Many users believed that an area of this size was too vast to permit reasonable
access by foot. There was a substantial tradition of access by stock and
airplane, both private and commercial. These users wished to ensure their
continued access by these means.i^
Idaho’s senior Senator Frank Church, for whom the wüdemess would
later be renamed, was the individual most responsible for the passage of this
act.i^ In 1979 Senator Church introduced three bills into the Senate on behalf
of the River of No Return WUdemess Council, a coalition of conservationist
groups, the Idaho Forest Industry Coundl, and the Carter administration.
All three of these bills contained language dealing with aircraft and
motorboat use that mirrored section 4(d)(1) of the WUdemess Act. Before the
bUls went to committee. Church facilitated four days of hearings around
Idaho, and a fifth day in Washington D C.. All told, testimony was heard
from over 600 people.!^ By the time the bUl was reported out of committee,
the provision governing aircraft had been rewritten to remove much of the
Secretary’s discretionary authority to close wUdemess airstrips.
The altemate language included in the CIWA ensured the
continuation of this preexisting use. The final language regarding aircraft use
is found in section 7(a)(1);
the landing of aircraft, where this use has become established prior to
the date of enactment of this Act shaU be permitted to continue subject
to such restrictions as the Secretary deems desirable; Provided,
River of No Return Wilderness Proposals, 1979 Hearings on S. 95 , S. 96. and S. 97 Before the
Subcomm. on Parks, Recreation and Renewable Resources of the Senate Comm, on Energy and
Natural Resources, %th Cong. 1st Sess.
CONGRESSIONAL QUARTERLY ALMANAC, Vol. 35, at 688 (1979). Originally
designated the River of No Return Wilderness, it was renamed the Frank Church-River of No
Return Wilderness in 1984 by Public Law 98-231.
1 5 Id.
See generally. River of No Return Wilderness Proposals, supra note 13.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
however, that the Secretary shall not permanently close or render
unserviceable any aircraft landing strip in regular use on national
forest lands on the date of enactment of the Act for reasons other than
extreme danger to aircraft, and in any case not without the express
written concurrence of the agency of the State of Idaho charged with
evaluating the safety of backcountry airstrips.'^
55
The Forest Service has responded to this provision by retaining and
maintaining all of the twelve airstrips managed by the agency.
During the hearings in Idaho, there were some comments supporting
the exception allowing for established uses of aircraft and motorboats, yet only
four statements favored an additional statutory mandate to protect all
wilderness airstrips. People who spoke in favor of the continuation of
established uses, whether by air or by water, primarily kept their comments
within the framework of the existing language. The River of No Return
Council, which spoke for 39 organizations and submitted a petition signed by
20,178 individuals favoring S. 95, supported the continuation of established
aircraft and motorboat uses according to section 4(d)(1) of the Wilderness
A c t '8
Idaho Governor John Evans was one of a few witnesses who spoke in
favor of stronger protection of air access. Evans asserted that he would insist
"that all existing airstrips on public lands within the primitive area remain
accessible to the public".'^ The editor of the Idaho Statesman also argued that
the existing provision for aircraft use was not good enough. He felt the
wording was not definitive enough and gave "too much discretionary power
to the Secretary of Agriculture to capriciously and arbitrarily close landing
strips" .^0
The Central Idaho Wilderness Act, supra note 12, § 7(a)(1).
River of No Return Wilderness Proposals, S M p ra note 13, at 599.
'9 Id. at 557.
20 Id. at 688.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
It was not until the hearing in Washington D C. that most of the
56
discussion regarding increased protection of existing airstrips took place,
primarily as a debate between Senator Church and representatives of the
Department of Agriculture. Senator Church expounded that,
[the proposed Central Idaho wilderness] is not the kind of area that can
be easily entered on foot from its exterior boundaries by people who
have neither the time or the capability . . . many people who want the
wilderness experience fly in and land on one or another of these
airstrips and then move to the interior of the area from the landing
strip.21
Rupert Cutler, the Assistant Secretary for Conservation, Research, and
Education at the Department of Agriculture, countered with the assurance
that closure of back-country airstrips would only happen "after a fair amount
of due process."22 He stated that the Department of Agriculture favored the
discretionary authority provided by the Wüdemess Act which would allow
airstrips on national forest land that "are not needed for the protection and
appropriate use of the wüdemess or for emergency purposes. . . [to] be phased
out. "23
According to the Department, only a few of the twelve airstrips in
question received active maintenance and some had been closed due to their
dangerous conditions. Church admonished the Department and the Forest
Service for these closures, stating that "through the process of intentional
neglect over the passage of years, they have become virtuaUy unusable."24 He
argued for "something in this bül that lays down an affirmative duty on the
Forest Service [to maintain these strips] because access to this area is just too
im portant. "25 Senator McClure also found the language of the Wüdemess
21
22
23
24
25
Id.
Id.
Id.
Id.
Id.
at 871.
at 872.
at 881.
at 872.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Act too permissive and believed that it could result in management that did
not meet "with the approval of the people who are accustomed to that
use.
57
"26
This discussion reappeared once again on the House and Senate floors.
Senator Church justitied the need for air access to his colleagues by saying that
"[b]ecause of the vastness of the new wilderness, without continued access by
air, few people could see and enjoy the more remote and less accessible parts
of this region." He emphasized that "the Forest Service is expressly prohibited
from closing airstrips on national forests within the wilderness, which are in
regular use at present, except for the reason of aircraft safety."27 In the House,
Representative Santini emphasized the need to provide explicit direction to
the Forest Service because "there has been a very strong administration trend
to either totally preclude such use or to make them essentially
unattainable."28
Section 7(a)(1) clearly limits administrative discretion to close
wilderness airstrips on this Wilderness. However, nowhere in the statutory
language or the legislative history is there any indication that Congress
intended to limit the agency's ability to regulate levels of air access to these
strips. Nor is there any discussion of increasing levels of use. So, while the
Act and its history does not prohibit any increase in use beyond the level
existing in 1980, neither does it prevent the Forest Service from restricting use
to 1980 levels where necessary to meet the Wilderness Act's requirements for
wilderness character, values and experience. The ClWA’s addition to the
Wilderness Act's aircraft exception merely prohibits the closure of these
airstrips for anything but safety reasons and mandates state involvement.
26 Id. at 881.
27126 CONG. REC. at S17780 (DaUy ed. June 26,1980).
28 Id. at S17781.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Wilderness managers on the Frank Church have interpreted it more
restrictively than is necessary.
The Great Bear Wilderness Act
While the language of the three paragraph Great Bear Wilderness Act
does not address the issue of aircraft landing strips, this issue is discussed in
the report which accompanied the bill. The legislation, sponsored by
Representative Mo UdaU (D-AZ), added 60,000 acres to the Bob Marshall
Wilderness and designated approximately 290,571 acres of the Flathead
National Forest as the Great Bear Wilderness. The newly designated Great
Bear Wilderness contained one airstrip, Schafer Meadows, which was
primarily used for recreational access by commercial outfitters and private
users, as well as for administrative purposes.29
House Report 1616 states that *'[t]his area was included m the
wilderness with the specific understanding that the Forest Service wül not act
to phase out public use of the airstrip." It goes on to note that section 4(d)(1)
of the Wilderness Act allows for such use to continue «md instructs the Forest
Service to manage the area so as to provide for continued access to the
airstrip."30 While the airstrip m ust remain open, the committee agreed that
it should not be significantly upgraded in any way. It also recognized that the
level of use should remain about the same and added that "greatly expanded
use may be reasonably regulated by the Forest Service to protect wüdemess
v a l u e s . T h i s regulation might be anticipated to iiKlude limitations on
daüy landings or types of usage.
29 The Great Bear Wilderness Act, supra note 3.
30 H.R. REP. 1616, at 3-4, (1978).
31 Id. at 4.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
58
As discussed in Chapter Two, a statute is the only legally permissible
way for a legislature to express its will. Statements within the legislative
history of an act may, however, be used to guide interpretation of a statute
where it is vague, ambiguous, or over general. The Forest Service has taken
the report’s language as a guide for management in this area. The agency
states in the Bob Marshall Great Bear Scapegoat Wilderness Recreation
Management Direction of 1987 that "the Forest Service recognizes the
Congressional Direction established in the House Committee Report
accompanying the act establishing the Great Bear
W ild e m e s s
’.^z
Conclusion
The direction found in both the Central Idaho Wilderness Act and
House Report 1616 indicate an unwillingness to allow the Forest Service full
discretion for the management of airfields in wilderness. The main concem
of the activists behind both of these provisions appears to be preventing
unwarranted closure of landing strips. The language of the CIWA clearly
restricts the Forest Service’s ability to dose airfields, however it places no
restrictions on the agency's power to regulate or limit air access. Nor does the
CIWA explicitly require the Forest Service to repair an airstrip that has been
rendered unserviceable by natural causes. House Report 1616 emphasizes
Congress' intention to keep the Shafer Meadows airstrip open. It does,
however, dearly recognize the potential need to regulate air access in order to
protect the wilderness resource.
Thus, although proponents of both provisions were wary of the
regulatory discretion provided by the Wilderness Act, neither goes much
32 b o b MARSHALL, GREAT BEAR, AND SCAPEGOAT WILDERNESSES: RECREATION
MANAGEMENT DIRECTION, at 36 (1987).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
59
further than that statute in actuality. The emphasis of section 4(d)(1) of the
Wilderness Act is on maintaining the status quo. For the Selway-Bitterroot,
the status quo in 1964 included three airstrips with a moderate level of use.
Therefore, Congressional intent was to retain this level of access - not to allow
it to increase. While the statutory discretion would permit the Forest Service
to decrease or eliminate these airstrips, that has not been done. What all
three provisions do still allow, most importantly, is agency regulation of
these airstrips, per its own regulations, for the protection of wilderness values
and the wilderness experience.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER FIVE
WILDERNESS AIRSTRIPS TODAY
The Development of Forest Service Wilderness Policy
As explained in Chapter Two, it is the responsibility of the relevant
federal agencies to translate Congressional statutes into working regulations
that accurately interpret the legislature's intent. After the passage of the
Wilderness Act, the Forest Service needed to write wilderness regulations
that translated the goals and provisions of the Act into on-the-ground
preservation.
In "Two faces of wilderness - a time for choice", BUl Worf detaUs the
birth of wUdemess policy in the Forest Service.^ Worf played an important
role in this development as a member of the four person task force assigned
to draft the agency's wUdemess regulations and policy guidelines. The task
force recognized that Congress had clearly instructed the agency to pursue a
new direction in wilderness policy. To better understand that mandate, they
first studied the legislative history and debate surrounding wUdemess
legislation.2 Throughout this histoiy, wUdemess supporters consistently
made three points: "1) the wUdemess resource is special, 2) the WUdemess
System must be for all time, and 3) wUdemess once lost could never be
regained. "^ The job of the task force would have been simple if Congress had
not included a list of exceptions to the generally prohibited uses of wUdemess.
In doing this Congress "opened the door for controversy
and
inconsistencies in agency interpretation.
1 William A. Worf, Tioo faces of wilderness - a time for choice, 16 ID L REV 424,425 (1980).
2 Id. at 426.
3 Id. at 427.
4 Id.
61
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In 1965, the wilderness task force sent out 18,000 copies of their draft
62
wilderness regulations for public comment. Meanwhile, land managers were
being barraged with requests for permission to use motorized equipment in
wilderness; from miners asking for helicopter access to wüdemess mines, to
phone companies wanting to build electronic repeaters in newly designated
wUdemess. On a case-by-case basis, managers tested these decisions "against
the Act, the maturing policy, and other preceding decisions."^
To meet such challenges, the agency needed a clear management
phUosophy. This phUosophy had to be based on a full understanding of the
value and meaning of wüdemess, and an interpretation of the statutory
language regarding management activities "necessary to meet the minimum
requirements of the administration of the area for the purposes of this Act."^
Whüe an overarching phUosophy would provide consistency, it was clear
that there would need to be flexibility in on-the-ground decision making.
Worf summarized this phUosophy as follows:
WUdemess is recognized as . . . a fragUe and essentiaUy nonrenewable
resource. Man's use of the area must always be in context with the idea
that maintaining an enduring resource of wUdemess for the future is
our overriding mandate.^
This doctrine came to be known as the Forest Service's purity phUosophy.
Under the purity phUosophy, the appropriateness of nonconforming
activities would be judged by their feasibility. The feasibility of undertaking a
project through primitive rather than motorized or mechanized means
would not be biased by economic considerations, convenience, comfort, of
efficiency.® This applied to administrative, public, and commercial activities
5 Id.
6 Id. at 427 and The WUdemess Act Pub. L. No. 88-577, § 4(d)(1), 16 U.S.C. §1131(c).
7 Id. at 427.
8 Id. at 428.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
alike. This philosophy interprets the prohibitions of the Wilderness Act’s
section 4(c) as being aimed as much
at preventing the ease and efficiency with which man can affect the
character of the land as to prevent temporary noise or unnatural
appearance . . . . The cumulative effect of nonconforming occupancies
and mechanization is sometimes subtle, but nonetheless r e a l . . . . the
fact that they can sometimes be hidden from visitors . . . does not make
them more compatible with wilderness.^
The purity doctrine has been criticized both by Congress and by some
classes of wilderness users. Senator Church, during debate over the
Endangered American Wilderness Act in 1977, accused the agency of
"applying provisions of the Wilderness Act too strictly '.^o Yet the task force
had considered both a more liberal interpretation of the Act’s meaning of
wilderness and the "necessary . . . minimum requirements" provision and
had rejected both in light of the Act’s intent.ii While a more practical
approach to wilderness management might reduce opposition to new
wüdemess designation^^ and fadlitate higher use of the NWPS, the
wüdemess resource as envisioned by the Wüdemess Act's sponsors would be
irreversibly damaged. In conclusion, Worf chaUenged the growing debate
over the appropriateness of the purity doctrine to consider "whether we want
a carefuUy selected and cherished coUection of U.S. originals in our
wüdemess heritage gaUery or whether we want to fül it to overflow with
cheap copies."i3
Forest Service W üdem ess Regulations and Policy
Current Forest Service wüdemess regulations and policy are found in
the Code of Federal Regulations and the Forest Service Manual. For the
9 Id. at 430.
10 Id. at 432.
11 Id. at 433.
12 Id. at 436.
13 Id. at 437.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
63
purpose of this thesis, I will focus only on regulations that broadly and
64
specifically speak to nonconforming wUdemess uses. The Forest Service
WUdemess Regulations in the Code of Federal Regulations state that
National Forest WUdemess shall be managed "to promote, perpetuate, and,
where necessary, restore the wUdemess character of the land and its specific
values of solitude, physical and mental chaUenge, scientific study, and
prim itive recreation.
C.F.R. section 293.6 reiterates the WUdemess Act's stipulation that
nonconforming motorized uses are prohibited "[ejxcept as provided in the
WUdemess Act, subsequent legislation establishing a particular WUdemess
unit or . . . [other regulations], and subject to existing rights".^5 These
regulations further outline the discretion of Chief of Forest Service to
regulate certain of these uses;
The Chief, Forest Service, may permit, subject to such restrictions as he
deems desirable, the landing of aircraft and the use of motorboats at
places within any wUdemess where these uses were established prior to
the date the WUdemess was designated by Congress.. . . The Chief may
also permit the maintenance of aircraft landing strips, heliports, or
hehspots which existed when the Wilderness was designated.!^
In recognition of the potential ambiguity within the Act, these regulations tell
the agency that when it is "resolving conflicts in resource use, wUdemess
values wUl be dominant". This is qualified by the clause, ". . . to the extent
not limited by the WUdemess Act, subsequent establishing legislation, or the
regulations in this part."!^
The Forest Service Manual provides guidance to the agency in both
broad and detaUed directives. Unlike the codified regulations in the C.F.R.s,
!4 36 C.F.R § 293.2.
!5 36 C.F.R.§ 293.6.
16 36 C.F.R. § 293.6(c).
17 36 C.F.R. § 293.2(c).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the Forest Service Manual is a policy document rather than a set of strict
65
regulations. Several recent court cases have asserted that the policy direction
found in the Forest Service Manual is not legally binding on the agency.
The Forest Service Manual is not substantive but "merely establishes
guidelines for the exercise of the Service's prosecutorial discretion”.!^
Because the Manual is not promulgated according to specific Congressional
direction as the CFR regulations are, it does not "have the independent force
and effect of law" according to the court in Western Radio Services Co,, Inc. v.
Espy. 20 Despite this ruling, the agency can stUl be found to have been
arbitrary and capricious under the Administrative Procedures Act if it does
not follow the policies it sets forth for itself in the Manual. It is also the
source for consistent management direction across the agency and is where
managers turn when faced with difficult discretionary duties. Therefore, it is
still quite important to this discussion.
The Forest Service Manual instructs wilderness managers to;
Manage the wüdemess resource to ensure its character and values are
dominant and enduring. Its management m ust be consistent over
time and between areas to ensure its present and future avaüability and
enjoyment as wüdemess. . . . ensure that each wüdemess offers
outstanding opportunities for solitude or a primitive and unconfined
type of recreation.2!
It sets forth a general "policy" for the management of nonconforming uses of
wüdemess areas that states;
In wüdemesses where the establishing legislation permits resource
uses and activities that are nonconforming exceptions to the definition
United States v. D»rem«s, 888 F. 2d 630,633 (9th Cir. 1989);lV«fem Radio ServicesCo., Inc.
Espy, 79 F. 3d 896,901 (9th Cir. 1996);Swanson v. U.S. Forest Service, 87 F. 3d 339(9thCir.
1996).
United States v. Doremus, 888 F. 2d 630,633 (9th Cir. 1989) cert, denied, 498 U.S. 1046, 111 S.
Ct. 751,752,112 L. Ed. 2d 772 (1991).
20 Western Radio Services Co., Inc. v. Espy, 79 F 3d 896,901 (9th Cir. 1996).
21 FOREST SERVICE MANUAL, WO Arndt § 2320 at 6 (1990).
V.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
66
of wilderness as described in the Wilderness Act, manage these
nonconforming uses and activities in such a manner as to minimize
their effect on the wilderness resource
In addition to following these general policy guidelines, managers should;
Cease uses and activities and remove existing structures not essential
to the administration, protection, or management of wilderness for
wilderness purposes or not provided for in the establishing
legislation.23
The guidelines set forth in the Forest Service Manual become more
important for occurrences like airfields, where Congress has given the agency
discretion rather than strict direction. However, even with the clarification of
the Manual and Regulations, on-the-ground decisions are still subject to a
large amount of discretion and, as a result, controversy. I will now look more
closely at existing airstrips in Idaho and Montana and then examine some
current issues in Forest Service wüdemess airfield management and how the
interpretive framework I have presented can assist managers in their
decision-making processes.
W ilderness Airstrips in Idaho and Montana
Frank Church-River of No Return Wilderness
The 2.3 mUlion acre Frank Church-River of No Return Wilderness
(FC-RONRW) has 31 operational airstrips within its boundaries
Twelve of
these are on federal land (Table 1.), four are on state inholdings, and fifteen
are on private inholdings.^s Additional airstrips occur on national forest
lands just outside the Wilderness.26 According to the Wüdemess
22 Id. § 2320.3(3) at 8.
23 Id. § 2320.3(4) at 8.
Frank Church-River of No Return Wilderness Draft Env. Impact Statement (FC-RONRW
DEIS) , Vol. I, at 3-6 (1998).
25 Id. at 1-9, 3-6.
26 FC-RONRW Draft Programmatic Management Plan, at 13 (1998).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
67
Management Plaiv these airstrips "provide improved access to the
Wilderness for hunters^ anglers, backpackers, river floaters, researchers,
private inholding groups, and other wilderness users."^^ As described in
Chapter Four, the Central Idaho Wilderness Act (CIWA) contains a special
provision governing the closure of airstrips on federal land in the
Wilderness. Both the provisions of the CIWA and the Wilderness Act must
be considered in wilderness management decisions in this area.
Table 1. Operational Landing Strips in the
National Forest Land
Bernard*
Cabin Creek*A
Chamberlain* A
Cold Meadows*A
Dewey Moore 0
Indian Creek*
Mahoney* A
Mile-Hi 0
Simonds 0
Soldier Bar*
Vines 0
Wilson Bar
State Inholdings
Lower Loon Creek
Stonebraker*
Taylor Ranch*
Thomas Creek
F C - R O N R W .^ s
Private Inholdings
Allison Ranch
Bradley Ranch
Campbells Ferry
Copenhaven
Dovel
Flying B
James Ranch
Pistol Creek
Root Ranch
Shepp Ranch
Sulphur Creek Ranch
Whitewater Ranch
YeUowpine Bar
* Closed to public use but operational.
* National forest landing strip with pit toilets.29
A National forest landing strip with stock racks.^o
0 National forest landing strip under consideration for use limitations by the
DEIS; œmmercial use currently prohibited.
The recently released 1998D raft Environmental Impact Statement
(DEIS) for the FC-RONRW notes that ”[t]he sites and sounds of aircraft
operating at or near landing strips and the noise of low level overflights
27 FC-RONRW, supra note 24, at 1-36.
28 FC-RONRW, supra note 26, at 11.
29 Id. 13.
30 Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
probably disturb the quiet of the wilderness.
The presence of aircraft and
68
landing strips affect wilderness visitors' potential for "viewing undeveloped
landscapes and areas where natural forces predominate
"reminder of human presence in the
w i l d e m e s s ." 3 3
They provide a
in addition to affecting
non-motorized users, "[a]ircraft activities have the potential to affect wildlife
. species, particularly those at landing sites located on or near key wildlife
habitat."34 Some landing strips have been identified as being proximal to
important habitat areas such as elk calving grounds.^s
The landing strips vary in condition from small, non-maintained,
undeveloped areas to graded and maintained runways with tie-downs, wind
socks, and user fadlities.36 Most have only been given a "fair" condition
rating by the state of Idaho’s last inspection.37 According to the FC-RONRW
management plan, approximately 5,500 aircraft landings occur within the
wilderness annually. Chamberlain and Indian Creek are the least demanding
to land on. Much of the use of Indian Creek is by boaters accessing the Middle
Fork of the Salmon River.3® Data on the use of federal airstrips in the
Wilderness is limited and inconsistent. Information that was collected
between 1991 and 1995, however, provides an idea of general trends and
minimum levels of use.^^ During this period use has fluctuated but has not
increased measurably
31 Id.
32 FC-RONRW, supra note 24, at 1-32.
33 Id. at 1-37.
34 Id.
35 Id. at 1-9.
36 Id. at 1-37.
37 Id. at 1-10.
33 FC-RONRW, supra note 26, at 13.
39 Id. at 14.
40 Id. at 15.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
69
Selwav-Bitterroot Wilderness
The Selway-Bitterroot Wilderness covers 1,340,460 acres straddling the
Montana-Idaho border
The area was one of the original Forest Service
wilderness units designated by the 1964 Act. At that time there were three
established airstrips in this area that are still in use today; Moose Creek,
Shearer, and Fish Lake. Both Moose Creek and Shearer are situated along the
Selway River in the heart of the wilderness on the Nez Perce National Forest
and Fish Lake is near the Wilderness' northem border on the Clearwater
National Forest.
Moose Creek is the only airfield on the Selway Bitterroot for which
there is reliable use data. This data indicates that total landings at this strip
have remained stable since 1975, decreasing slightly in recent years.^z Use of
all three airstrips fits into three categories, administrative (either district use,
fire, emergency of other agency activities), private, and
o u tf itte d .^ ^
Between
1975 and 1990, use of the Moose Creek airstrip was 11% administrative, 35%
outfitted, and 54% private. Over this period, administrative use has declined
substantially as the agency has eliminated its dependence on air access for
supplying the Moose Creek Ranger Station. Commercial flights were reduced
by a third when the number of outfitters operating there dropped from three
to two.^4 In 1996, there were a total of 565 landings recorded at Moose Creek,
with 86% of these private, 10% commercial, and the remainder
administrative flights of different types.^s
Aldo Leopold Wilderness Research Institute, Unpublished data (1998).
^2 u.S.D.A. Forest Service, Sdway-Bifterroof Wilderness General Management Direction , at
0-1 (1992).
43 Id.
44 Id. at 0-2.
45 U.S.D.A. Forest Service, Selway-Bitterroot Wilderness 1996 State of the Wilderness Report,
at 23 (1996).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The management plan states that "low level overflights by aircraft
70
create a disturbance which is not compatible w ith a wilderness experience. "46
Despite this fact, these airstrips are intended to serve as "internal portals for
users pursuing w ilderness-dependent activities' .^^ In 1988, research at the
Shearer airstrip found that most aircraft rem ained at the strip for less than 15
m inutes which, according to the Forest Service, is not a wilderness-dependent
use unless the pilots were dropping off w üdem ess users.48 Instead, many
pilots are engaged in w hat are called "touch and goes", where an aircraft
touches dow n on a strip in order to add another backcountry landing to their
accom plishm ents .49
The 1992 Management Plan U pdate addresses how the use of these
three airfields will be evaluated and possibly regulated. The num ber of
landings per day per airfield, and the num ber of landings per year per airfield
wUl serve as indicators of use levels. Standards that will be based upon four
years of "reasonable data" from each landing strip and a study of user
perceptions regarding aircraft use and im pacts will allow mangers to judge
inappropriate use of the airstrips.^o Six years after the plan was written, four
years of data is still needed for Fish Lake and three years for Shearer.51 A
yearly standard of 800 landings was set for Moose Greek based on the avéfage
num ber of landings from 1975 to 1990. There is still no daily standard for
Moose Creek and no standards at all for Fish Lake and
S h e a r e r .5 2
46 U.S.D.A. Forest Service, supra note 42, at 0 -1 .
47 Id.
48 Id. at 0-2.
49por definition of "touch and go" landings see U.S.D.A. Forest Service, Payette NF,
Environmental Assessment for the Cabin Creek Airstrip Repair Project, March 31,1997 at 34.
88 U.S.D.A. Forest Service, supra note 42, at 0 -1 .
81 Jerome Bird, District Ranger, U.S.D.A. Forest Service Moose Creek Ranger District, personal
communication, 3/18/97.
82 U.S.D.A. Forest Service, supra note 42, at 0-2.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The purpose of these standards is to allow managers to prevent
71
"further erosion of wilderness values, such as that of an area isolated from
the sights and sounds of hum an use."53 While no standards will be set for
length of stay at the airfields, management restrictions may be imposed when
total use numbers exceed standards in order to reduce use that is not
wilderness dependent.®^ The m anagem ent plan prioritizes m anagem ent
m ethods that might be instituted in the face of overuse. The two "most
preferable" m ethods are education (through airport guides, newsletters, and
on-site contacts and interpretative materials) and encouraging use of airstrips
outside of the wilderness boundary. Three other techniques are listed as
"least preferable but still acceptable". These are requiring user landing fees,
instituting a perm it system, and emphasizing shuttle services rather than
many smaller aircraft.55
The 1992 plan's attem pt to reevaluate levels of air access to the SelwayBitterroot is admirable but unfortunately it has not been implemented.
While outfitter use of Moose Creek has decreased, private use has increased.
If the inactive outfitter perm it is reissued. Moose Creek could be in danger of
violating its standards. Use data is not yet available for the Shearer and Fish
Lake airfields because of insufficient funds to support a study. The forests are
trying to find volunteers to collect this data since autom atic counters are
consistently disabled by moose. To be reliable however, data w ould need to be
collected throughout the full operating season which is July through October
for the high altitude Fish Lake, and June through October for Shearer and
Moose Creek.56
53 Id.
54 Id.
55 Id. at 0 6 .
55 Bird, supra note 51.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
72
Great Bear W ilderness
The Great Bear W ilderness is part of the area commonly called the Bob
M arshall W ilderness Complex (BMWC) along the Continental Divide in
northern Montana. As discussed in Chapter Four, w hen the Great Bear
W ilderness was designated, the House Committee Report included a
statem ent of their intent to allow use of the Shafer Meadows A irstrip to
continue. The report stipulated that the airfield should rem ain open, but that
access could be regulated if use expanded
g r e a t l y .5 7
The
1987
Recreation
M anagement Direction for the BMWC officially recognized the Congressional
direction given by this report.
The task force responsible for writing the management plan, which
was m ade up of mangers, researchers, and
c itiz e n s ^ s
and included pilots,
chose not to define "greatly expanded use".59 Instead, the acceptable level of
aircraft use would be based on impacts to the wüdem ess resource and
experience. Management actions would be imposed only if use levels
exceeded standards set by the Task Force.^® As on the Selway Bitterroot,
airfield use indicators are the number of landings per day and per year. The
standards for appropriate use levels are 1) "[a] 90% probability of having no
more than a total of five aircraft landings per day" and 2) "[n]o more than a
total of 550 landings per year of which no more than 6% will be
adm inistrative landings.
The task force em phasized the need for education of both pÜots and
non-motorized users before use gets to the point where it is unacceptably
57 H. REP. No. 96-1616 (1978).
5® U.S.D.A. Forest Service, Bob Marshall, Great Bear, Scapegoat Wildernesses:
Management Direction, at 58 (1987).
59 Id. at 36.
60 Id.
61 Id. at 39.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Recreation
im pacting other wilderness users. Educational program s include a
cooperative effort between the Forest Service, the M ontana Aeronautics
Division, M ontana Pilots Association, and others to instruct pilots to avoid
flights into Schafer for non-wildem ess purposes, to m aintain a minimum
flight level of 2,000 feet over the wilderness, and to avoid unnecessary low
approaches and
d e p a r tu r e s .^ ^
Training flights into the wilderness strip have
been discouraged by both the pilot associations and the Forest S e r v i c e . ^ 3 por
its part, the Forest Service will let other wilderness users know about these
efforte and tell them that air access is a Congressionally recognized use of the
Great Bear Wildemess.^^
If the standards are e>jceeded and increased educational efforts cannot
bring them back into compliance, more restrictive management steps wül be
taken. These might entail limiting the types and timing of landings, or as a
last resort, requiring a perm it for landings. Of the various options, the least
restrictive m anagement tool will always be
c h o s e n .^ ^
The Forest has between
twelve and fifteen year of use data for the Shafer Meadows strip. This
inform ation is broken dow n by type of user, but it is not statistically accurate
at this level. Use levels are currently within the param eters of the standards.
There is an adm inistrative site at the airfield which gives m anagers the
opportunity to make contact w ith users and further educational efforts
towards both aircraft and non-m otorized users.**
*2 Id.
*3 Steve McCoot personal communication, 4/24/98.
*4 Id. at 39-40.
*5 Id. at 40.
** Gordon Ash, Spotted Bear Ranger District, personal communication, 4 /9 /9 7 .
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
73
Issues in A irstrip M anagem ent and Congressional Intent
Applying the Process
I will now examine three recent issues in wilderness airfield
m anagement and dem onstrate how the interpretive fram ework outlined in
Chapter Two can be applied to them. In one of these case studies, wilderness
values prevailed; one gave preference to aircraft access; and one is undecided.
In each of these cases I will show how the steps of statutory construction and
legislative interpretation outUned in Chapter Two and dem onstrated in
Chapters Three and Four could have been applied. The prim ary steps that
m ust be followed are as follows; 1) determ ine through statutory construction
whether ambiguity exists, 2) apply the canons of linguistic construction to the
statute to attem pt to resolve the ambiguity or contradiction, 3) after statutory
construction fails, determ ine w hether the use of legislative history is
appropriate, 4) examine the legislative history for Congressional intent.
FC-RONRW M anagem ent Plan
The first case study I will look at is the Draft Management Plan for the
FC-RONRW. This is an example of a decision which was not properly
informed by the intentions of the W ilderness Act and the CIWA. One of the
primary focuses of the 1998 Draft Environmental Impact Statement (DEIS)
accompanying the new management plan is the acceptability of aircraft use
and maintenance of landing strips in the
W ild e m e s s .* ^
The DEIS will decide
how much commercial aircraft access is acceptable, w hat degree of
maintenance should be undertaken, and how to reduce conflicts between
aircraft and other users.^® The need for this analysis was brought up by
conflicts with other user groups identified by managers and the public.^^ It is
^^FC-RONRW, supra note 24, at 1-6.
68 Id. at 1-7.
69 Id. at 1-9.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
74
an im portant case study because the chosen alternative will govern
m anagem ent of all twelve airstrips for the next planning period.
Common factors for all four action alternatives in the DEIS include
requiring special use perm its for aU commercial flights, minimum tool
evaluations for any m aintenance projects, seasonal closures to prevent soil
erosion and wildlife disturbances, and case- by-case analysis of the treatm ent
of acquired lands w ith air access.70 Alternative 5, the Forest Service's
preferred alternative, prohibits commercial use of Dewey-Moore, Mile-Hi,
Simonds, and Vines airstrips (see Table 1.), limits non-commercial use on
these strips to emergency situations only, and would m aintain them at only a
serviceable rating or b e t t e r T h e remaining eight strips would be
m aintained at a fair rating.
The planning docum ent anticipates an increase in overall airstrip use
based on projections of grow th for the state of Idaho. Under Alternative 5,
this increase would be concentrated primarily at Indian Creek and
Chamberlain.^^ Use at Cabin Creek is expected to see the next highest level of
increase. Overall, the W ilderness would see a slow increase in overflights
that might be offset by educational efforts geared at backcountry pilots. ^3
According to the DEIS, Alternative 2, would "have the greatest positive
effect on the wilderness resource and would minimize the negative effects of
aviation on other
g ro u p s " .^ ^
n w ould also have the most negative effect on
aviation activities, while still providing for "current use levels at most
landing strips".^® This alternative would limit use of the four airstrips along
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
at 2-105.
at 2-106.
at 4-4.
at 4-4, 4-8.
at 4-5.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
75
Big Creek to one party a week selected by perm it and would reduce
76
commercial use of Indian Creek to .44% of current peak levels/^ Use of nonwildem ess airstrips would probably see the greatest increase under this
alternative. Since more than half of the airstrips w ithin the wilderness are
privately owned, there is no way of assuring the reduction of overflights
across the Wilderness solely through agency action. Now I will show how to
apply the analytical framework to this case study.
Determine Ambiguity
The first step is to determ ine w hether the statutory issue is ambiguous
and in need of interpretation. The FC-RONRW is governed by both the
W üdemess Act and the Central Idaho W üdem ess Act (CIWA), thus both
statutes m ust be examined. Construction ^ d interpretation is only valid
where the plain language of a statute is insufficient to resolve the issue or
question. The interpreter m ust first apply the plain meaning doctrine to the
statutory language of the relevant laws. The initial ambiguity in this case
stems from provisions of the W üdemess Act that are intended to govern the
entire NWPS. The analysis in C hapter Three has show n how aircraft use
conflicts w ith the Act's definition of wüdem ess. The conflict within the
statute, and therefore the ambiguity, arises from the exception found in
section 4(d)(1), which perm its the continuation of a use that is incompatible
w ith the wüdem ess values and character defined in section 2 of the A ct The
CIWA adds an additional level of ambiguity by increasing statutory protection
for these airstrips w ithout resolving the underlying conflict between the use
and wüdem ess protection.
76 Id. at 2-105.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Canons of Linguistic Construction
77
The canons of linguistic construction do not help clarify the basic
contradiction between the definition of wilderness and the exception for
aircraft. However, they do shed light on the param eters of the management
restrictions of section 7(a)(1) of the CIWA.^^ The Forest Service has
interpreted this section of the CIWA as severely limiting their ability to
restrict use of wilderness airstrips on the FC-RONRW. However, applying
both the canons and examining the legislative history show that this section
does not restrict their discretion to limit use levels. The canon of Expressio
Unius Est Exclusio Alterius states that "the m ention of one thing implies the
exclusion of another". By adding an additional clause to the W ilderness Act's
language in section 7(a)(1), Congress was clearly limiting the agency's ability
to close airstrips on the Frank Church. With this provision. Congress showed
that it could specifically limit the agency's management discretion. At the
same time. Congress specifically does not limit the agency's ability to restrict
itôe levels as it "deems desirable". By expressly restricting closures and not
restricting regulation of use. Congress implies that only the ability to dose
airstrips is limited.
. Legislative Interpretation
While the canons support this interpretation of the CIWA, they are not
as widely accepted as legislative interpretation. Legislative interpretation is
also still necessary to address the ambiguity in the W üdemess Act. EspedaUy
§ 7(a)(1) of the CIWA states that, "the landing of aircraft, where this use has become
established prior to the date of enactment of this Act shall be permitted to continue subject to
such restrictions as the Secretary deems desirable: Provided, however, that the Secretary
shall not permanently close or render unserviceable any aircraft landing strip in regular use on
national forest lands on the date of enactment of the Act for reasons other than extreme danger
to aircraft, and in any case not without the express written concurrence of the agency of the
State of Idaho charged with evaluating the safety of backcountry airstrips." The Central
Idaho Wilderness Act of 1980, Pub. L. No. 96-312; 16 U.S.C § 1132.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
78
in a case w ith strong special interest lobbying, it is im portant to research every
relevant perspective. Therefore, the interpreter should then turn to the
legislative history of the statute. As outlined in Chapter Two (Table 1), Justice
Breyer lists five circumstances under which the use of legislative history is
justified. In this case (1), avoiding an absurd result. Interpreting the
W ilderness Act as allowing greatly expanded use of existing airstrips would
create the absurd result of allowing high levels of a use that Congress
perceives as incompatible w ith wüdem ess values.
Turning to the legislative history, the first place to look for statutory
explanations are the committee reports. The language of the committee
report is given the most weight during interpretation. Statements m ade by
the committee chair w hen he/sh e reports the bill out of committee and
statem ents of the m easure's sponsors are considered next. There are four
committee reports relevant to the W üdemess Act.^8 The full debate over
wüdem ess preservation, however, spanned nine years, 65 bills, and 18
hearings. Therefore, there are im portant issues not m entioned in the
committee reports which are addressed elsewhere.^^ All of these docum ents the committee reports, debate published in the Congressional Record,
statem ents by the sponsors in hearings, statem ents by the opposition, and aU
the drafts of previous wüdem ess bills - m ust then be examined to determ ine
Congressional intent for the m anagement of w üdem ess airstrips.
Chapter Three gives a thorough description of relevant statem ents on
these subjects. In summary, I found many clear definitions of wüdem ess by
the bÜls' sponsors. These definitions focused on solitude, natural processes.
78 s. REP. No. 635 (1961); S. REP. No. 109 (1963); H. REP. No. 1538 (1964); H. REP. No. 1829
(1964).
79 Michael McCloskey, The Wilderness Act of 1964 : Its Background and Meaning., 45 OR. L.
REV. at 298 (1966).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
and an absence of technology and hum an interference. To explain the
79
continuation of preexisting airstrips, I looked at the treatm ent of airstrips in
previous drafts of wilderness bills and the discussion of the status quo
strategy. In the original wilderness bills, nonconforming uses like airfields
were to be phased out when feasible (see page 45). This term ination clause
was eliminated in later drafts, but according to Sutherlands and others, both
its earlier presence and eventual elim ination are relevant to this discussion.®®
By elim inating the phase out provision. Congress indicated its unwillingness
to disrupt the status quo if it m eant jeopardizing passage of a wilderness bill.
According to the legislative history of the W ilderness Act, the prim ary
reason airstrips were allowed to persist in wüdem ess despite their
incompatibility, was to m aintain the status quo and reduce opposition from
displaced users. WhÜe existing uses would be allowed to continue,
nonconforming uses were prohibited w here they were absent prior to
designation. Although Congress abdicated its right to statutorüy term inate
the use of wüdem ess airstrips in this Act, it in no way indicated an acceptance
of increasing this use. N or did the W üdemess Act statutorily preclude the
eventual elimination of w üdem ess airstrips. Instead, Congress explicitly gave
the managing agency, the Forest Service, the discretion to regulate use of
these airfields as the agency "deems desirable".®^
On the other hand, whüe the CIWA does restrict the Forest Service’s
ability to close airstrips, but does not reduce the Forest Service’s management
discretion. The Forest Service is still bound by the W üdemess Act to
minimize the impacts of air access on the wüdem ess character of an area.
The CIWA in no way impinges on the Service’s power to regulate levels of
80 SUTHERLAND STAY. CONST. § 48.04 (5th Ed.).
®1 The Wilderness Act, supra note 6, § 4(d)(1).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
air access. The later act could have resolved the issue of management
discretion, yet it did not. In the Great Bear House Report in 1978, the
committee referred to agency regulation of "greatly expanded" aircraft use.
W ith that report. Congress dem onstrated that it could be more specific and
that it could, if it so desired, control the degree of agency management
discretion of nonconforming uses.
The legislative history of the CIWA supports the conclusion that
closure, not management discretion, was the evil being remedied. This
history shows that the bills' sponsors wanted to prevent the agency from
arbitrarily closing airstrips. Nowhere in any of the statutes' extrinsic
documents is there an indication that Congress intended to reduce the Forest
Service’s discretionary ability to manage use levels pursuant to agency
regulations and policies. Senator Church did refer to the adm inistrative
trend of making air access "essentially unattainable ."®2 This could be
considered the outer limit to agency management discretion before the
threshold of outright closure is reached.
Both the W üdemess Act and the CIWA should have directed the
agency to choose Alternative 2. Section 4(b) of the Act states that the
adm inistering agencies are responsible for "preserving the wüdem ess
character of the
a r e a " .® ^
This character is defined in section 2 as "retaining its
prim eval character and influence, w ithout perm anent im provem ents or
hum an habitation".®^ Yet, even though the DEIS adm its that Alternative 2
would have the most positive effect on wüdem ess and other user groups, it
was not selected. Simply overriding the broader mandates of the W üdemess
Act regarding the protection of wüdem ess because of the protective clause of
®2 126 CONG. REC at S17781 (Daily ed. June 26,1980).
®3 The Wilderness Act, supra note 6, § 4(b) 16 U.S.C. § 1131.
84 Id. § 2(c) 16 U.S.C. § 1131.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
80
the CIWA would be an absurd interpretation of the two acts. While
81
alternative 2 would adm ittedly have the "most negative effect' ^s on aircraft
users, it does not close any existing airstrips and therefore does not violate the
CIWA. W ith a better understanding of the intent of the Wilderness Act and
the CIWA the agency may have been prom pted to select the alternative more
in Une w ith Congressional intent.
Expansion of Helicopter Access in Alaska
I followed the same steps when examining the next two management
issues. M uch of the process is the same and I will not repeat it in detail.
Specifically, the analyses rely upon the same statements of overall
Congressional intent from the W ilderness Act. For these two examples I will
em phasize the differences and not reiterate the similarities. The first of these
is im portant because it w ould have set a precedent for permitting a
supposedly established use to continue after a lapse of eighteen years since
wüdem ess designation. This is a case w here the final decision followed the
intent of the W üdem ess Act.
In April of 19%, the U.S. Forest Service released a Draft EIS (DEIS),
Helicopter Landings in Wilderness, which outlined seven alternatives
providing for helicopter access to wüdem ess within the Tongass National
Forest. The range of alternatives would affect up to 12 out of the 19
wüdem esses w ithin the Tongass, and analyzes 135 access areas ranging in size
from several acres to 12,000 acres. According to the DEIS, the need for this
action "responds to the request to reinstate helicopter landings at over 400
areas identified as used for general public access prior to designation".®^ It
focused on providing the general public w ith easier access to remote Alaskan
FC-RONRW, supra note 24, at 4-5.
U.S.D.A. Forest Service, Helicopter Landings in Wilderness (DEIS), 1-3 (1996).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
wüdem ess sites. The Proposed Action w ould have designated 41 helicopter
access areas within seven wilderness areas, w ith one to twenty-five access
areas in each affected wilderness. The num ber of landings at each area w ould
be limited to five or twenty-five per year based on historical data. All of the
action alternatives address only areas which have had previous usage by
helicopters, as attested by pilots affidavits.
The DEIS relied on the W üdem ess Act's "established" use clause as the
legal basis for this action. The Alaska National Interest Lands Conservation
Act (ANÏLCA) of 1980 includes specific provisions allowing for m otorized
access to Alaskan wüdem ess to protect traditional subsistence uses of these
areas. Section 1110 of ANILCA perm its the use of fixed-wing aircraft,
snowmobUes, and m otorboats for subsistence hunting and gathering.®^
Because ANILCA specifies fixed-wing aircraft, the agency did not believe that
this law provided sufficient legal basis for helicopter access. Therefore the
DEIS focused on the special provisions of the W üdemess Act.
The Forest Service relied on affidavits signed by helicopter püots
stating that they had previously flown into specific areas as the basis for
establishing previous use. One issue raised by the public during the NEPA
scoping process was that this evidence is not independently verifiable and is
based on the statements of those who stand to gain the most from the
proposed action. No other forms of documentation, such as flight logs, dated
photographs etc., were avaÜable.®® In its analysis, the Forest Service
considered three visits w ithin five years an "established" use.89 The fact that
ANILCA does not refer to helicopter use whüe it does specify many other
ANILCA, supra note I, § 1110.
88 DEIS, supra note 86, at 1-15.
89 Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
82
uses, is to some critics
. . dem onstrable evidence that helicopter use for
recreation had not become established at the time of designation.''^^
This proposal caused an outcry of protest from wilderness users, the
conservation community, the national office of the Forest Service, and the
D epartm ent of the Interior. Argum ents focused on the n ^ a tiv e impacts to
the wilderness resource, the experience of solitude, and opportunities for
prim itive recreation. Commenters also criticized the agency's dependence on
minimal levels of questionably proven past access to establish previous use
history. There was a fear that this action would set a precedent for
retroactively instating air access to other wilderness areas, including
Departm ent of Interior wildernesses. In November of 1997, the Alaskan
Regional Forester Phil Janik issued the Record of Decision on this project,
selecting the no action alternative that prohibited helicopter access to these
wildernesses. Janik explained that the Selected Alternative;
provides for the best m anagem ent of the W üdemess resource to
ensure its character and values are dom inant and enduring w ithin the
framework of the existing laws, regulations, policies, public needs and
desires, and capabilities of the land.^^
He found that there is currently adequate access to wüdemess without
permitting helicopter use. The im pacts associated with helicopter access
outweighed the benefits this access m ight confer.
This decision shows how the agency can use both the intent and
statutory language of the W üdemess Act to reject a nonconforming use that
would negatively affect the character of the wüdemess resource and
experience. Whüe the agency did not explicitly follow the process I have
outlined and does not m ention legislative history in any of the decision
90 George Nickas, Wüdemess Watch, Scoping comments. July 16,19%.
91 U.S.D.A. Forest Service, Alaska, Helicopter Landings in Wilderness (FEIS) Record of
Decision, at 3 (1997).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
83
docum ents, their decision is well supported by both statutory construction
84
and legislative interpretation.
The EIS explicitly rejects ANILCA as a basis for the proposal, and relies
on the W ilderness Act as the only relevant statute. I agree w ith their
interpretation and have also only considered the W ilderness Act in analyzing
this decision. Determining the ambiguity under the Act is the same as in the
preceding example. The plain meaning doctrine fails because of the
ambiguity inherent between sections 2 and 4 of the W üdemess Act. The
canons of construction are particularly useful in determ ining w hether this
lapsed use should be reinstated. Whüe the Act does not define "established",
construction can help the interpreter understand the proper meaning of this
word. One canon states that "words in common usage should be assigned
their ordinary meaning" (See page
1 6 ).^ 2
M erriam-W ebster's dictionary
defines "established" as "to provide strong evidence for", "to provide w ith a
secure reputation", or "to make a norm, a custom, a convention"
Three
visits w ithin five years does not appear to be a level of access that is on a firm
basis’. Because of the uncertainty and limited level of the preexisting use in
these areas, the agency had the discretion to prohibit access.
FinaUy, the interpreter m ust determ ine w hether they may look to the
legislative history to determ ine how to further resolve the ambiguity in the
statutory language. Breyer's fifth circumstance - choosing between politically
controversial alternatives - applies here.^^ As evidenced by the outcry of
protest from both the general public and the other management agencies, the
proposal was politically controversial. Therefore, the Forest Service could
92 SUTHERLAND, supra note 80, § 47.28 at 248.
93 Webster's 3rd N ew International Dictionary. G. & C. Merriam Co.: Springfield MA (1976).
94 T o help choose between alternatives when a statute is politically controversial." in
Stephen Breyer The Uses of Legislative History in Interpreting Statutes. S. CA L. REV. 856857(1992).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
justifiably turn to extrinsic aids for assistance. In the quote from Janik’s
85
decision notice, the agency clearly realized that perm itting this access was not
justified by the intent of the W ilderness Act, This intent, as outlined in
Chapter Three and in the preceding example, focused on protection of the
wilderness resource and its character from hum an developm ent and
m odernization. The exception for nonconforming uses like aircraft landings
was aimed at protecting the status quo and therefore only applied to
established uses. The regional forester clearly saw helicopter access as
incompatible w ith the Act’s m andates to protect the wilderness resource. The
resulting decision sets a strong precedent for protecting wilderness from
nonconform ing uses.
Red's Horse Ranch on the Eagle Cap W ilderness
The final case study examines a situation in which a final decision has
not yet been made. In 1994, as part of the Forest Service's policy of acquiring
any non-federal wilderness inholdings that become available,^® the agency
purchased a former guest ranch. Red’s Horse Ranch, in Oregon’s Eagle Cap
W ilderness.^^ The ranch has about 30 buildings, farm equipment, and an
airstrip. Eight miles from the nearest road, the airstrip was the m ain form of
access to this backcountry resort.^^ The Forest Service now m ust decide how
to manage its newly acquired property. While the agency intends to
undertake an EA to ascertain the proper use of the ranch and airstrip, it
currently lacks the funds to do so. In the meantime, the airstrip is closed to
the public but is being used for adm inistrative flights. The airfield also sees
occasional private landings from uninform ed pilots. A full-time wilderness
FS MANUAL, supra note 21, 2320.3(9).
Marly Gardner, Eagle Cap Ranger District, personal communication (1997).
Richard Cockle, "Forest Service Still Has N o Plan for Red's Horse Ranch", The Oregonian.
9 /2 /9 7 , at B8.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
ranger is in residence at the ranch. H is/her duties include maintaining its
facilities and protecting against vandals.^®
The Red's Horse Ranch management decision is an Interesting case
study for applying Congressional intent to a discretionary management
situation. The ambiguity in this case involves w hether or not the private
inholding airstrip within the wilderness boundary can be considered an
established use under the term s of the Wilderness Act. While the airstrip at
Red's Horse Ranch had been in operation since 1931, it was on private land.
There were no airstrips in operation on federal land within the wilderness
w hen the Eagle Cap W ilderness was designated in 1964.
To determ ine w hether this use deserves statutory protection, the
interpreter m ust look to the intent and purpose of the Act, From the
statutory language it is clear that the Wilderness Act sets forth rules for
designating and managing federal lands as wilderness. Wilderness is defined
in section 2(c) as an area of "undeveloped Federal land".^^ The Act's
provisions do not affect actions on private inholdings within wilderness
boundaries. The only control the Act has over private inholdings is in
regards to ingress and egress to lands wholly surrounded by wüdemess
lands.^oo Thus, since the airstrip on this property was not governed by the
W üdemess Act prior to acquisition, it may not be considered a previously
established use under section 4(d)(1).
Although this explanation seems self-explanatory, since this is a
politically charged issue, the interpreter may also turn to the legislative
history of the Act for further justification. As shown in Chapter Two, the
W üdemess Act clearly intended the protection of wüdemess airstrips to apply
Gardner, supra note 96.
99 The Wilderness Act, supra note 6, § 2(c), 16 U.S.C. § 1131.
100 Id. §5(b), 16 U.S.C. § 1135.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
86
to the 1964 status quo on federal lands. Therefore, it would be contrary to
Congressional intent to expand this protection to airstrips on private
inholdings. As this land was not federal in 1964, there is no established use.
Arguing that the airstrip is protected as an established use would be similar to
asserting that the m echanized farm equipm ent should be allowed to operate
on the now NWPS property because it was established there before
designation. In addition, the Act and agency policy provide for the
acquisition of private and state inholdings when feasible. The purpose of
adding to the NWPS is to expand the protection of wilderness quality lands
nationwide. Therefore, the acquisition of land w ith existing nonconforming
uses w ould not make sense unless those uses were term inated upon
acquisition.
The Forest Service is facing strong pressure from previous users of
Red’s Horse Ranch to reopen both the airstrip and guest ranch to public use.
However, doing so w ould compromise both the wilderness character of the
Eagle Cap and the integrity of wilderness protection system-wide. The agency
needs to make a decision that is consistent w ith the intent of the W ilderness
Act. This fram ework for legislative interpretation provides a strong
foundation which the agency can use in support of a decision that both
restores and protects the wilderness character of this area.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
87
CHAPTER SIX
CONCLUSION.
The Wilderness Act of 1964 and subsequent wilderness legislation
created a system that would ensure the preservation of some of the
rem aining wilderness in this country for future generations. W ilderness
proponents saw the need to protect these rem nants from the pressures of an
expanding and dem anding society. The preservation battle did not end w ith
wilderness designation however. While wilderness legislation sought to
foster a nationwide system of increased protection and consistent
management; political compromises w rought along the way left loopholes in
the laws which allow continued threats to the wilderness character of lands in
the NWPS.
Today, wilderness m anagers are faced w ith the challenge of performing
a host of discretionary duties in a very polarized atmosphere. They are
constantly faced w ith pressures from interest groups demanding opposing
interpretations of wilderness regulations. Where the Wilderness Act is clear
and directive, these requests are easily dealt with; where the Act stipulates
discretion, however, the result has usually been controversy and confusion.
Wilderness airfields provide just one example of such a discretionary
quandary.
Chapter Five outlined some current issues in airfield m anagement that
stem from the conflicting m andates of the Wilderness Act. I have described a
process by which wilderness managers, users, and other interested parties can
reevaluate such requests in light of the underlying purpose and intent of the
wilderness legislation. This process uses legislative histories to interpret
ambiguous aspects of the statute(s) in question. I have shown how this
88
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
practice, which has been used by the courts for over a century, can be adapted
89
to serve the needs of agencies charged w ith administering ambiguous
statutes. Congress instructed the land management agencies to preserve and
protect wild lands for future generations but did so through a statute flawed
w ith ambiguity. The analytical fram ework I have proposed gives the agencies
a legal and historically accurate basis on which to make its difficult
m anagerial decisions.
Going back to the legislative history of the Wilderness Act, it is clear
that wilderness proponents w anted a system that would protect
"untrammeled" areas, provide a place w here natural processes would
dominate, and where hum ans could go to experience solitude and primitive
forms of recreation. They reduced opposition by preserving the status quo. In
three wilderness areas in Idaho and Montana, this m eant retaining airfields
w ithin wilderness. A dditional protection of this particular nonconforming
use was added in later years by the Central Idaho Wüdemess Act (CIWA) and
the committee report accompanying the Great Bear W üdemess Act.
Applying the process of statutory interpretation and construction to
these three legislative docum ents provides a clearer idea of Congressional
intent regarding wüdem ess airstrips. The legislative history of the
W üdemess Act dem onstrates the strong preservationist intent of the Act's
sponsors and the political realities that led them to include such incompatible
preexisting uses. Two other things are also clear from these documents; 1)
while Congress would perm it existing airstrips to remain, their use was to
continue at existing levels and 2) the Secretary was to have discretionary duty
to regulate these airfields to reduce conflicts w ith wilderness values, the
character of the area, and other users.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The CIWA reduced m uch of the agency’s discretion to close airstrips
90
but nothing in the statute or its legislative history suggest any intention to
lim it its ability to regulate use levels at existing airstrips. The committee
report on the Great Bear W ilderness, which contains Congressional direction
regarding the Schafer A irstrip, reiterated the W ilderness Act's intention to
m aintain existing airfields but explicitly recognized the agency's responsibility
to regulate this use to be more compatible w ith wUdemess values.
This type of statutory and legislative analysis provides managers w ith a
firm er grasp of both their Congressionally m andated responsibilities and the
ideals underlying them. The preservationist ideals of the sponsors of the
W ilderness Act apparent from this analysis provide the agency w ith the
rationale it needs to protect wilderness values.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
91
Sources Consulted
Alaska National Interest Land Conservation Act. Public Law 96-487. U.S.
Code Vol. 16 secs. 3101 et seq. December 2,1980.
Aldo Leopold WUdemess Research Institute. 1998. Unpublished data.
AHin, Craig W. The Politics O f Wilderness Preservation. Westport, CT:
Greenwood Press, 1982.
Araujo, Robert J. "The Use Of Legislative History In Statutory Interpretation;
A Look At Regents V. Bakke." Seton Hall Legislative Journal, 16 (1992)
: 57-176.
Ash, Gordon. U.S.D.A. Forest Service Spotted Bear Ranger District, MT.
Personal communication. 1997.
Beum, Frank R. "Nonconforming W ilderness Uses: Confounding Issues
And Challenges." In Preparing to Manage Wilderness in the 21st
Century, Proceedings of the conference, 108-113. USDA Forest Service
General Technical Report SE-66. Athens, GA, 1990.
Bird, Jerome. District Ranger, U.S.D.A. Forest Service, Moose Creek Ranger
District. Personal communication, March 18, 1997.
Breyer, Stephen. "On the Uses of Legislative History in Interpreting
Statutes." Southern California Law Review 65 (1992) : 845-874.
Caminetti v. United States. 242 US 470 (1917).
Central Idaho Wilderness Act. Public Law 96-312. U.S. Code. Vol. 16 sec.
1132-July 23,1980.
Cockle, Richard. "Forest Service StUl Has No Plan for Red's Horse Ranch."
The Oregonian September 2,1997 : B8.
Cole, David N. "Wilderness Recreation in the United States - Trends in Use,
Users, and Impacts." International Journal of Wilderness 2 (3) (1996) :
14-18.
and Peter B. Landres. "Threats to WUdemess Ecosystems: impacts
and research needs." Ecological Applications 6 (1) (1996) : 168-184.
Congressional Quarterly Almanac. Vol. 20. 88th Cong. 2nd sess.
Congressional Quarterly Service, W ashington D C. (1964).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
92
Congressional Quarterly Almanac. Vol. 35. 96 Cong. 1 sess.
Congressional Q uarterly Service, W ashington D C. (1979).
Congressional Quarterly Weekly Report, August 8, 1961. Congressional
Quarterly Service, W ashington D C. (1961).
Corry, J.A. "The Use of Legislative History in the Interpretation of
Statutes." The Canadian Bar Review 32 (1954) : 625-637.
Crandell, Henry. "Congressional Perspectives On The Origin Of The
Wilderness Act And Its Meaning Today." Pages 9-14 in Proceedings National WUdemess Research Conference: Issues, State-of-Knowledge,
Future Direction, July 23-26 1985 (R.C. Lucas, compiler). U.S.D.A.
Forest Service GTRINT-220, Fort Collins, CO (1987).
Crawford, Earl T. The Construction of Statutes . Saint Louis: Thomas Law
Book Company, 1940.
Delaney, David K., Teiyk G. Grubb, and Larry L. Pater. "Effects of Helicopter
Noise on Nesting Mexican Spotted Owl" A Report to U.S. Air Force 49,
July 1997.
de Sloovere, Frederick J. "Extrinsic Aids in the Interpretation of Statutes."
University of Pennsylvania Law Review 88 (1940) : 527-555.
Dickerson, Reed. The Interpretation and Application of Statutes. Boston
MA: Little, Brown and Company, 1975.
The Eastern Wilderness Act of 1974. Public Law 93-622.16 U.S.C. 1132.
Federal Trade Commission v. Raladam Co. 283 U S. 643; 75 L. Ed. 1324, 51 S.
Ct. 587 (1931).
Folsom, Gwendolyn B. Legislative History: Research For the Interpretation
of Laws . Charlottesville, VA: University Press of Virginia, 1972.
Gardner, Marty. U.S.D.A Forest Service Eagle Cap Ranger District. Personal
communication. November, 1997.
Great Bear Wilderness Act, Public Law 95-546. U S. Code Vol. 16, sec. 1132.
October 28,1978.
Green v. Bock Laundry Co. 490 U.S. 504 (1989).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
93
Grubb, Teryl G. and William W. Bowerman. "Variations in Breeding Bald
Eagle Responses to Jets, Light Planes, and Helicopters." Journal of
Raptor Research 31 (3) (1997) : 213-222.
Hendee, John, George H. Stankey, and Robert C. Lucas. Wilderness
Management . U.S.D.A. Forest Service Miscellaneous Publication 1365,
1990.
Hession, Jack M. The Legislative History of the Wilderness Act . M aster's
Thesis, San Diego, CA: San Diego State College, 1967.
Landis, James. "A Note on Statutory Interpretation". Harvard Law Review
43 (1930) : 866-893.
Mac Callum, Gerald C. Legislative Intent. Yale Law Journal 75 (1966) : 754787.
Mastro Plastics Corporation v. NLRB. 350 U.S. 270 (1956).
McDonald, Leigh Ann. "The Role of Legislative History in Statutory
Interpretation: A New Era A fter the Resignation of Justice William
Brennan?" Missouri Law Review 56 (1991) : 121-141.
Mercure, Delbert V. and William M. Ross. "The W ilderness Act: a Product of
Congressional Compromise." In Congress and the Environment., ed.
R.A. Cooley and G. Wandesford-Smitifi, 47-64. Seattle, WA: Univ. of
WA Press, 1969.
McCloskey, Michael. 1966. "The W üdemess Act of 1964: Its Background and
Meaning." Oregon Law Review 45 (1966) : 288-321.
Mitchell V . Kentucky Finance Co. 359 U.S. 290 (1959).
National W oodwork M anufacturers Association v. NLRB. 386 U.S. 612
(1967).
Nash, Roderick. Wilderness and the American Mind . 3d ed. New Haven,
CT: Yale University Press, 1982.
Nickas, George. Scoping comments on Helicopter Landings DEIS . Missoula
MT: W üdemess Watch, July 16, 1996.
NLRB V . Fruit and Vegetable Packers. 377 U.S. 5866 (1964).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
94
Nimez, Richard I. "The N ature of Legislative Intent and the Use of
Legislative Documents as Extrinsic Aids to Statutory Interpretation: a
Reexamination." California Western Law Review 9 (1972) : 128-135.
Pierce v. Underwood. 487 U.S. 552 (1988).
Radin, Max. "Statutory Interpretation." Harvard Law Review 43 (1930) : 863885.
Schwartz, Jack and Amanda Staken Conn. "The Court of Appeals at the
Codctail Party: the Use and Misuse of Legislative History." Maryland
Law Review 54 (1995) : 432-465.
Statsky, William P. Legislative Analysis: How to Use Statutes and
Regulations . St. Paul MN: West Publishing Co., 1975.
Sutherland Statutes and Statutory Construction. 5th ed. (N.J. Singer, ed.).
Deerfield XL: Clark Boardman Callaghan.
Swanson v. United States Forest Service. 87 F. 3d 339 (9th Circuit 1996).
Symons v. Chrysler Corp. Loan Guam atee Board. 670 F 2nd 238 (CA DC 1981).
U.S. Code of Federal Regulations.
U.S. Congress. House. Committee on Interior and Insular Affairs.
Establishing a National Wilderness Preservation System, Report on
H.R. 9070. 88 Cong. 2nd sess. July 2,1964.
.. House. Committee on Interior and Insular Affairs. Establishing a
National Wilderness Preservation System, Report on S. 4. 88 Cong.
2nd sess. August 19,1964.
. House. Report 1616 on H.R. 13972. 95th Cong. 2nd sess.
September 22, 1978.
_ . Senate. Com mittee on Energy and N atural Resources. River
of No Return Wilderness: Hearing Before the Subcommittee on Parks,
Recreation and Renewable Resources ,S. 95, S. 96, S. 97,96th Cong. 1st
sess. May 21,22, 24,1979.
• Senate. Committee on Interior and Insular Affairs. Wilderness
Preservation System: Hearing Before the Committee on Interior and
Insular Affairs , S. 1176, 85th Cong. 1st sess. June 19,1957.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
95
. Senate. Committee on Interior and Insular Affairs. National
Wilderness Preservation System - 1958: Hearings on S. 4028 Before the
Senate Committee on Interior and Insular Affairs, 85th Cong., 1st sess.
July 23,1958.
. Senate. Committee on Interior and Insular Affairs. National
Wilderness Preservation Act of 1959: Hearings on S. 1123 Before the
Senate Committee on Interior and Insular Affairs. 86th Cong. 1st
sess. March 30,31 and April 2,1959.
. Senate. Debate on the N ational W ilderness Preservation
System. 87 Cong. 1st sess. Congressional Record 107, September 6,
1961.
_.
Senate. Com mittee on Interior and Insular Affairs. Report on
S. 174 to Establish a National Wilderness Preservation System. 87
Cong. 1st sess. July 27,1961.
Senate. Com mittee on Interior and Insular Affairs. Report on
S. 4 to Establish a National Wilderness Preservation System, 88 Cong.
1st sess. April 3,1963.
. Senate. Debate on the N ational W ilderness Preservation
System. 96 Cong. 2nd sess. Congressional Record 126,26 June 1980.
U.S.D.A. Forest Service. Bob Marshall Great Bear and Scapegoat Wildernesses:
Recreation Management Direction. Flathead, Lolo, Helena, Lewis &
Clark National Forests, 1987.
_______ .
Forest Service Manual, 1990 W ilderness Amendments.
Selway-Bittterroot Wilderness General Management Direction.
1992.
. Frank Church - River of No Return Wilderness Management
Plan. Saknon-Challis, Payette, Nez Perce, Boise, and Bitterroot
National Forests, 1994.
. Helicopter Access in Wilderness, Draft Environmental Impact
Statement (DEIS), Vols. 1 and 2, Tongass National Forest R10-MB-318b.
April, 1996.
Frank Church - River of No Return Wilderness Draft
Environmental Impact Statement, Vols I. and II Salmon-Challis,
Payette, Nez Perce, Boise, and Bitterroot National Forests, 1998.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
96
_______ . Frank Church - River of No Return Wilderness Draft
Programmatic Management Plan Salmon-Challis, Payette, Nez Perce,
Boise, and Bitterroot National Forests, 1998.
United States v. Missouri Pacific Railroad. 278 U S. 269 (1929).
United States v. American Trucking Association, 310 U.S. 534 (1940).
United States v. County of San Francisco. 310 U.S. 16 (1940).
United States v. W rightwood Dairy Co. 315 U.S. 110 (1942).
United States v. International Union. 352 U.S. 567 (1975).
United States v. Doremus. 888 F. 2nd 630 (9th Circuit 1989).
W estern Radio Services Co. Inc. v. Espy. 79 F. 3d 896 (9th Circuit 1996).
The Wilderness Act of 1964, Public Law 88-577 U.S. Code Vol. 16 secs. 1131 1135, September 3,1964.
Winks, Robin. "Dispelling The Myth: Many Believe the Park Service M ust
Balance Two Incompatible Missions: to Protect Resources and to
Provide Public Access." National Parks July/A ugust (1996) : 52-53.
Worf, William A., Glen Jorgenson, and Robert Lucas. Wilderness Policy
Review. W ashington, D.C.: U.S.D.A. Forest Service, 1972.
Worf, William A. "Two Faces of W ilderness - a Time for Choice." Idaho Law
R eview 16 (1980) : 424-437.
W otiing, Ken. W ilderness C oordinator for the Frank Church River of No
Return W ilderness. Personal communication, 1997.
Zuber v. Allen. 396 U S. 168 (1969).
Zweigert, Konrad and Hans-Jurgen Puttfarken. "Statutory Interpretation
- Civilian Style." In Sutherland Statutes and Statutory Construction
5th ed., ed. N.J. Singer, 847-865. Deerfield IL: Clark Boardman
Callaghan, 1992.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.